Karnataka High Court
Equipment Sales Corporation vs Asstt. Collector Of Customs on 21 June, 1989
Equivalent citations: 1990(25)ECC145, 1989(24)ECR767(KARNATAKA), 1989(43)ELT256(KAR), 1989(2)KARLJ242
JUDGMENT
S.R. Rajasekhara Murthy, J
1. In Writ Petition Nos. 3181 and 3101/89 the petitions are by the same petitioner. Writ Petition No. 3102/89 is filed by a different petitioner.
2. The contentions urged in these Writ Petitions are similar and are therefore disposed of by this common order.
3. The petitioners imported consignments consisting of Urine Collecting sacks. When they arrived at the Inland Container Depot, Bangalore a claim was made by the petitioners for exemption from payment of import duty under Customs Act under Notifications No. 208/81 dated 22-9-1981.
4. The Assistant Collector made an order which is impugned in Writ Petition No. 3181/89 dated 16-4-1985, ordering confiscation of goods and also levied redemption fine. On further appeal by the petitioner before the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT) the matter was remanded by its order dated 26-12-1985 and a de novo order made on 27-3-1987 by the Collector of Customs, Bangalore. The Collector ordered confiscation of goods and permitted redemption on payment of fine of Rupees one lakh.
5. On further appeal, the CEGAT by its order dated 25-1-1988 allowed the appeal and it was held, the petitioner was entitled to the benefit of exemption under Notification 208/81. There was also a direction to release the goods expeditiously since they were life saving equipment.
6. Consequent on his success before the CEGAT the petitioner approached the Collector of Customs, Bangalore, for issue of a detention certificate for getting the release of the goods from the Railways. The Collector declined to issue the demurrage waiver Certificate on the ground that the Department has filed and appeal before the Supreme Court against the order passed by the Appellate Tribunal. The refusal to issue the demurrage waiver certificate is challenged in this writ petition.
7. In Writ Petition No. 3101/89 by the same petitioner, a similar order denying exemption under the same Notification 208/81 was made by the Assistant Collector. The Collector allowed the appeal and reversed the order of the Assistant Collector and held that the petitioner was entitled to the exemption under the Notification 208/81. The appeal by the Department is said to be pending before the Tribunal.
8. An interim order was made by the Appellate Tribunal directing the Collector to release the goods on his executing a personal bond. The petitioner's request for issue of a demurrage waiver certificate having been refused the petitioner has approached this Court in this Writ Petition.
9. In Writ Petition No. 3102/89 the facts are identical with Writ Petition No. 3101/89 and the appeal by the Department filed against the Appellate Tribunal's order is said to be pending before Supreme Court. The refusal to issue demurrage waiver certificate is the subject matter of this writ petition also.
10. It is urged by Sri Chandra Kumar learned Counsel for the petitioners in all these cases that the petitioners are entitled to issue demurrage waiver certificate having regard to the fact that the petitioners in Writ Petition No. 3181/89 has succeeded before the Appellate Tribunal and in the other two cases there is a direction issued by the Appellants Tribunal to release the goods on executing a personal bond.
11. The petitioners' case is that they are not in a position to get the release of the goods from the Railway in whose custody the goods have remained, without a detention certificate, since the Railways to whom the demurrage charges are to be paid, insist on such a certificate in order to release the goods. In this situation, the petitioners have approached this Hon'ble Court for a direction to the Customs Authorities to issue the necessary Wavier Certificate in each case. Section 45 of the Customs Act reads thus;
"45(1) Save as otherwise provided in any law for the time being in a force, all imported goods unloaded in a customs area shall remain in the custody of such person may be approved by the Collector of Customs until they are cleared for home consumption or are warehoused or are warehoused or are transshipped in accordance with the provisions of Chapter VIII."
(2) The person having custody of any imported goods in a customs area, whether under the provisions of sub-section (1) or under any law for the time being in force -
(a) shall keep a record of such goods and send a copy thereof to the proper officer;
(b) shall not permit such goods to be removed from the customs area or to dealt with, except under and in accordance with the permission in writing of the proper officer."
12. The detention starts from the date on which bill of entry is presented i.e., on 16-2-1985 the petitioner in this case in writ petition No. 3191/89. The effect of the order passed by the Appellate Tribunal on 25-1-1988 is that the petitioner was entitled to the benefit of exemption of the Notification 208/81. On the facts of the case the delay in getting the goods released from the Railways cannot be attributed to the fault of the petitioner since it was the Customs Authorities that detained the goods.
13. On the facts of this case (W.P. 3191/89) and the other two writ petitions, the petitioners in the of first case succeeded, before the Appellate Tribunal and if follows as a consequence that the petitioner are entitled to a detention certificate so that they may get the goods released without payment of demurrage charges. Though there is no Rule or Regulation under which such detention certificate can be issued by the Department, it is by virtue of decisions of Courts that such certificates are being issued by the Customs and other authorities.
14. Sri Chandrakumar, has citied Full Bench decision of the Madras High Court in National Industries v. Assistant Collector of Customs, Madras 1980 (6) E.L.T. 128, and two other decisions of this Courts in Writ Petition No. 713/81 and 1982 (10) E.L.T. 15. The Ruling of the Madras High Court appears to the law on the point and accepted by the Department. On the facts of the present cases also the petitioners are bound to succeed.
15. That such a certificate should not be rejected solely on the ground that the appeal by the Department is pending before the Supreme Court as also the Ruling of the Supreme Court in Collector of Customs v. Krishna Sales Private Ltd. [1989 (41) E.L.T. 374 (S.C.)]. The contention of the Department that the certificate was refused solely on the ground of an appeal filed before the Supreme Court is pending admission, has to be rejected.
16. Sri A. Shivaramaiah for respondent-4 who are the agents for the Shipping Corporation of India has filed statement of objections. Their case is that under the terms of the Bill of Lading, the importers viz., the consignees are responsible for paying both the tariff and the detention charges to the shipping agents. He has produced before me a copy of the Bill of lading which contains these two terms. The substance of the statement filed on behalf of respondent-4 is that they have a lien on the goods until the detention charges are paid by the consignee for the delay in releasing the goods and returning the containers.
17. This dispute or the claim of respondent No. 4 against the consignee petitioner cannot decided in this writ petition. As directed in this order the petitioner is entitled for a demurrage waiver certificate from the Customs authorities. Without expressing any opinion on the claim made by the 4th respondent against the petitioner which flows from the contract into between them under the Bill of lading, suffice it for the present case to observe that the 4th respondent is at liberty to enforce its claim against the petitioner in accordance with law.
18. The 1st respondent is directed to furnish a copy of the certificate to the 4th respondent.
19. In the result writ petitions are allowed and the first respondent is directed to issue demurrage waiver certificate in all the three cases within two weeks from the date of receipt of this order.