TMI Blog2005 (6) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... e above two containers. The said consignment was shipped from Djakarta by P.T. Singeri Samudera having its Office at Graha Nampan, 2nd Floor, JL Mampang, Prapatan Raya No. 100, Djakarta - 12760, in favour of one M/s. Shyam Trading, the respondent No. 5. On arrival of the said goods at the port the respondent No. 5 did not clear the same under the provisions of Customs Act, 1962, nor anybody came forward to claim the ownership of said goods. As a result, the containers could not be destuffed nor the same could be removed or cleared. The petitioners made repeated representation to the Port Authority as well as the Customs Authorities for destuffing of the containers and disposal of the goods contained therein. The respondent Authorities and each of them failed and/or refused to take steps under the provision of Customs Act, Rules and regulations framed thereunder and further the Major Port Trusts Act and the rules and regulation framed thereunder. 2.Mr. P.K. Mallick, learned Senior Advocate, with Mr. Talukdar in support of the writ petition contends that their clients took all reasonable steps in order to ensure destuffing of the imported material from the said containers to take d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Customs Authorities on 4th April, 2003, for destuffing the containers nearly after 17 months from the date of arrival of the containers. The Port Authority duly signified its consent to put up the content of the containers for sale on auction. No response has been received from the writ petitioner. As a result, demurrage on containers alone came to be Rs. 5,75,899/- as on 31st March, 2004, that is for two years 5 months calculated and at the rate of Rs. 681.85 per day. On account of the demurrage charges on cargo inside the containers and aggregate sum of Rs. 25,80,931/- is due as on 25th November, 2003. Thus, the Port Authorities have no fault nor any negligence for destuffing or disposal of the goods contained in the aforesaid containers. Under these circumstances, the Port Trust is entitled to recover the statutory port charges. In support of his contention the petitioners relied on the decisions of Supreme Court reported in 1995 (77) E.L.T. 753 (S.C.) = (1995) 3 SCC 151 (International Airports Authority of India v. Shyam International and Ors.). The aforesaid decision according to him has ruled amongst others that the Board of Trustees for the Port, under the Statute, tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms authority was served with a notice and they have not filed any affidavit in opposition, despite direction being given, nor they have come forward with any claim of duty. As such I am not in a position to hold whether the said goods imported is dutiable one or not. Actually this question has not fallen for consideration in this matter. 8.The point of controversy involved in this matter is who is at fault for accrual of demurrage charges for keeping the goods along with container at the port premises till the Special Officer appointed by this Court sold the same and the same were removed. It is settled position of the law irrespective of the fact and circumstances if the goods are not removed from the port areas the same are liable to be charged with the port duties including demurrage charges. The subject goods arrived in the port areas on 13th November, 1991 admittedly and these goods were brought in two containers owned and supplied by the superior principal of the writ petitioner. Therefore, after giving free time for removal, the goods together with container are fallen to the chargeability of the demurrage. Therefore, going by the facts it is an admitted position the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other manner, such goods or so much thereof as, in the opinion of the Board, may be necessary - (a) if any rates payable to the Board in respect of goods have not been paid, or (b) if any rent payable to the Board in respect of any place or in which such goods have been stored has not been paid, or (c) if any lien of any ship-owner for freight or other charges of which notice has been given has not been discharged and if the person claiming such lien for freight or other charge has made to the Board an application for such sale. Before making such sale, the Board shall(2) give ten days' notice of the same by publication thereof in the Port Gazette, or where there is no Port Gazette, in Official Gazette and also in at least one of the principal local daily newspaper : Provided that in the case of animals any perishable or hazardous goods, the Board may give such shorter notice and in such mariner as, the opinion of the Board, the urgency of the case admits of. If the address of the owner of the goods(3) has been stated on the manifest of the goods or in any of the documents which have come into the hands of the Board, or is otherwise known notice sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in the notice served upon him or published under sub-section (1), the Board may, at any time after the expiration of two months from the date on which such goods were placed in its custody, sell the goods by public auction or in such cases as the Board considers it necessary so to do, for reasons to be recorded in writing sell by tender, private agreement or in any other manner after giving notice of the sale in the manner specified in sub-sections (2) and (3) of section 61. Notwithstanding anything contained in(4) sub-section (1) or sub-section (3) - (a) the Board may, in the case of animals and perishable or hazardous goods, give notice of removal of such goods although the period of one month or, as the case may be, of two months specified in sub-section has not expired or give such shorter notice of sale and in such manner as, in the opinion of the Board, the urgency of the case requires; (b) arms and ammunition and controlled goods may be sold in accordance with the provisions of sub-section (4) of Section 61. The Central Government may, if it deems(5) necessary so to do in the public interest, by notification in the Official Gazette, exempt any goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d decision of this Court (Matter No. 3691 of 1999, the Chairman, C.P.T. Others v. Star Works IPI Ltd. Others), and Notification No. 440 dated 1st February, 1988, that the port authority is not custodian of the goods until the same are unstuffed for taking steps under the law. I am unable to accept this argument that the port authority is helpless to take action under law even if the container owner does not arrange for unstuffing the goods. The container owner, in my view, cannot unstuff nor remove the goods from the container lying within Customs Zone at port area, unless owner or importer of the goods clear the same in accordance with law. Moreover, I do not find any restriction or embargo under the law in taking action by the port under the aforesaid provision. 15.As rightly contended by Mr. Mullick appearing with Mr. Talukdar the port authority failed and/or neglected to discharge the aforesaid statutory obligation coupled with power by not disposing and/or selling the goods after expiry of two months from the date of landing under Section 61 of the Port Act read with Section 48 of the Customs Act, 1962. Mr. Roychowdhury submits that the writ petitioner approached the por ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e demurrage charges for the containers as even after having found inaction of port authority after expiry of the free time, the writ petitioner did not take lawful action by approaching the Court. 17.Now the question remains who is to bear the demurrage charges in relation to the goods as well as container, as I find the sale proceeds is not sufficient to cover the claim of the port authority. Under the law the accrual of demurrage charges after expiry of free time is a matter of course. Law is very clear in case of failure or lapses of the port authority the question of waiver of the same may arise, but that will depend upon the facts and circumstances of each case. I am of the view the port authority in this case is so negligent for not taking any step after expiry of two months as to disentitle it to claim demurrage charges. 18.Another question is whether the petitioner is entitled to waiver in full for the period calculated from the date of expiry of two months till the date of filing of the writ petition or not because of negligence of port. In my view the petitioner is not entitled to get full exemption. The petitioner is also equally contributory to this negligent act. W ..... X X X X Extracts X X X X X X X X Extracts X X X X
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