Delhi High Court
Gulab Impex Enterprises Ltd. vs International Airport Authority Of ... on 3 February, 1992
Equivalent citations: 46(1992)DLT515, 1994(74)ELT37(DEL)
Author: B.N. Kirpal
Bench: B.N. Kirpal
JUDGMENT
B.N. Kirpal. J, (1) The claim of the petitioner in this writ petition is for the refund of the excess amount of demurrage which it had paid to the respondents 1 and 2. The sum of refund so claimed comes to Rs. 3,26,645.00 .
(2) The petitioner had imported multi-cable transit cable sealing system. According to the petitioner these goods were to be cleared under Tariff Item No. 85.47 on the payment of duty @ 135.75%. The Customs Department. however, with regard to the import of items made on 7th and 12th December, 1988 decided that the goods were to be cleared by paying duty @ 181.75% under Tariff Item No. 39. Provisional clearance was granted and on payment of demurrage goods were released to the petitioner. Subsequently the present writ petition was filed and the claim was that demurrage should not have been charged because detention certificate had been issued in the present case.
(3) Before the filing of the writ petition the question as to whether the petitioner's import fell under Item No. 85.47 or Item 39 has been settled in favor of the petitioner. On 8th January, 1990 the petitioner wrote a letter to the International Airport Authority of India in which it quoted an earlier observation of the International Airport Authority of India on the claim of refund wherein the appropriate authority had stated that the question of refund would be considered after decision is taken by the Customs Authorities regarding the Classification of the goods in question. It was represented by the petitioner that by virtue of a tariff advice the classification of the imported Items was as per the demand of the petitioner and infact the Customs Authorities had already cancelled the bank guarantee and the bond which had been issued by the petitioner at the time of provisional clearance. Despite the decision of the Custom Authorities on 5th March, 1990 the Cargo Manager of the International Airport Authority of India informed the petitioner that the claim for refund of demurrage Was not admissible because the waiver could not be extended for detention due to the dispute in classification.
(4) Learned Counsel for the petitioner has drawn our attention to two decisions of this Court, one in the case of Trishul Impex v Uoi, 1991 (2) Delhi Lawyer, Page 1==43 (1991) Dlt 538 and the other is that of Grand Slum International v. Uoi, C. W. 554/91, decided on 21st Sep. 1991 wherein in somewhat similar circumstances this Court had directed that when ultimately the importer succeeds no demurrage charges should be levied. We are in agreement with this principle. If there Is a wrong classification made by the Customs Authorities or if the import is not validly allowed then the party making the import should not be allowed to suffer on account of mistake committed by the Customs authorities. If the classification had been correctly made then the goods would have been cleared within time and in the event of the non-clearance of the goods it is the petitioner who would have been bound to pay the demurrage. Where, however, as in the present case, the petitioner was rightly contending with regard to tariff items under which the goods should be cleared and the 517 Customs Authorities wrongly did not allow clearance under that tariff item, then it Is not the petitioner who should suffer. As and when it is finally determined that the petitioner was right in its legal submissions then the petitioner would be entitled to all the consequential benefits there from including the non-liability to pay the demurrage charges.
(5) Following the aforesaid two decisions this writ petition is allowed and the demurrage charges levied by the respondents on the petitioner from the date of the filing of the Bill of Entry till the date of release of the goods should be refunded to the petitioner.
(6) The petition stands disposed of. Petition allowed. Delhi High Court Present : Mr. Dalveer Bhandarl, J. Hamza NOZOGLU-Petitioner Versus Union Of India And OTHERS-Respondents Criminal Writ No. 4-32 of 1991-Decided on 17-2-92 Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974- Section 3(1)- Detention order under- Constitution of India-Art. 226 -Writ of Habeas Corpus challenging said detention order-On the ground of unexplained delay in consideration of statutory representation by the respondent -Representation 37.91 received on 31.7.91 was finally rejected on 27.8.91- Delay of 28 days-Whether this delay is violative of Art. 22(5) of Constitution ? (Yes)-Effect-Detention order quashed (Para II) Held that after carefully looking into the details of the days, it is clear that the representation dated 30.7.91 which was received by the respondent on 31.7.91, was rejected on 27.8.91 and there is no reasonable explanation for delay of 28 in deciding the representation of the petitioner. This long unexplained delay is violative of the petitioner's fundamental right as enshrined under Article 22(5) of the Constitution. Cases referred 1. . Mr. Ashutosh Advocate for the Petitioner. Mr. K.K. Manan with Mr. Kamal Nijhawan, Advocates for the Respondents Important Point Inordinate unexplained delay in consideration of detenu's statutory representation violates fundamental right u 'Art. 22(5) of Constitution and renders the detention order invalid. 518 Judgment Dalveer Bhandari, J.--The petitioner has filed a writ petition under Article 226 of the Constitution of India and has prayed, inter alia, that the writ of habeas corpus be issued, quashing the order of detention dated 6.2.91. passed by the Joint Secretary to the Government of India, under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, with a view to preventing him from smuggling goods and also preventing him from engaging in, transporting, concealing and keeping smuggled goods. Acting on intelligence report on 15.1.91, the officers of the Directorate of Revenue Intelligence. New Delhi (Headquarters) mounted surveillance in Sunder Nagar in the vicinity of a hotel Kailash Inn, 10, Sunder Nagar, New Delhi. The officers found one Caravan (Mini Bus) with foreign registration, parked outside the Inn. Enquiries with the hotel revealed that the owner of the Caravan was a Turkish national named Hamza Nozoglu who was staying in Room no. 117 of the hotel. The officers visited the Inn and called the petitioner, Shri Hamza and asked him to show the relevant papers and to open the door of the vehicle for its search. This vehicle had crossed Attari Border (Punjab) on 11.1.91 as a carnet de passage no. 508435 issued on 26.12.90. The mini-bus was rummaged and after its extensive search, the officers succeeded in locating 20 packets wrapped with adhesive tape from the wardrobe of the mini-bus. Each packet contained two bars of I kg. each of foreign marked gold totally weighing 40 kgs. valuedatRs.l.48crores. The officers then searched the room no. 117 of the Inn, where they recovered 4110 Us $ and 2700 Irannian Rails and some documents. The search of the mini-bus and the room of the Inn was conducted in presence of two independent witnesses On being asked, the petitioner could not produce any proof documentary or otherwise in support of legal import/possession of the recovered smuggled gold bars. The officers, therefore seized the said 40 foreign gold bars weighing 40 kgs. valued at Rs. 148 crores Along with wrappers of paper and adhesive tapes, 4110 Us $ and 2700 Iranian Rails under reasonable belief that the same were smuggled and were liable to confiscation under the provisions of Customs Act, 1962. 2. One registration book B no. 98967 dated 26.2.90, one driving license Belge No. 10693 dated 13.7.76 and the carnet no. 508435 dated 26.12.90 were taken into possession from room no. 117 of Kailash Inn, 10, Sunder Nagar, New Delhi and seized as the same were relevant to enquiry under the Customs Act. The mini bus was also seized. 3. The petitioner in the present writ petition submits that he has been falsely implicated in the case and he was forced to sign some blank papers and in fact he never knew the contents of the so-called voluntary statement alleged to have been recorded under under Section 108 of the Customs Act. Though the petitioner has challenged the detention order on various grounds but during the course of arguments before this Court, the petitioner laid stress only on the ground of unexplained delay in consideration of his statutory representation by the respondent. The petitioner submits that unreasonable and unexplained delay in disposing of the petitioner's representation has resulted in infringement of his fundamental right under Article 22(5) of the Constitution of India, and the detention order be quashed because of this lapse on the part of the respondent. I have heard Mr. Ashutosh, Learned Counsel for the petitioner, and Mr. K.K. Manan, learned Counsel for the respondent/State. Mr. Manan has taken considerable pains in preparing a chart for the convenience of the 519 Court in order to test the veracity of the arguments of the Learned Counsel for the petitioner. The admitted facts are set out as under : 4. The representation of the petitioner dated 30.7.91 was received by the respondent on 31.7.91. On 2.8 91, a letter was sent to the sponsoring authority i.e. Dri, requesting them to furnish parawise comments. 5. The comments were sent by the sponsoring authority on 16.8.91 vide its letter dated 8.8.91. The papers were compiled and put up before the Joint Secretary on 19.8.91. The file was forwarded to the Joint Secretary, Ss & Do with the remarks of Joint Secretary on 20.8.91. The file was then placed before the Minister of State on 23.8.91 and on the same day before the Finance Minister who rejected the representation On 27.8.91, the file was received bank and on the same day, a Memorandum rejecting the representation of the detenu was issued. 6 After carefully looking into the details of the days, it is clear that the representation dated 30.7.91 which was received by the respondent on 31.7.91 was rejected on 27.8.91 and there is no reasonable explanation for delay of 28 days in deciding the representation of the petitioner. This long unexplained delay is violative of the petitioner's fundamental right as enshrined under Article 22(5) of the Constitution.
(7) The Supreme Court in Mahesh Kumar Chauhan alias Bante v. Union of India and Others. 1990 (2) Vol. Vii Crimes page 472, has quashed the detention order because there was unexplained delay of 17 days. The Court while quashing the detention order observed as under : "Reverting to the facts of the present case as submitted by the learned Counsel except merely mentioning that the representation was forwarded to the concerned sponsoring authority on 25.8.1989 and the comments from the sponsoring authority was received by the Department on 11.9.1989, there is absolutely no explanation as to why such a delay had occurred. Therefore, in the light of the proposition laid down in Rama Dhondu Borade's case (albeit), we have no other option except to allow this appeal on the ground that this undue and unexplained delay is in violation of the constitutional obligation enshrined in Article 22(5) of the Constitution of India rendering the impugned order invalid."
(8) In Rama Dhondu Borade v. V.K. Saraf, Commissioner of Police and Others 1989 (3), SC.C. 173, the detention order was quashed for unexplained delay of 10 days. This has been a settled position of law as crystalised by a large number of decisions of the Supreme Court that unreasonable delay in consideration of the petitioner's representation is violative of his fundamental right under Article 22(5) of the Constitution of India. Reference may be made to some of the Judgments which have been decided by the Hon'ble Supreme Court, where the same principle has been reiterated. Francis Coralie Mulin v. W.C. Khambra and Others. . Harish Pahwa v. State of U .P. and Others. , Aslam Ahmed Sahire Ahmed Sadik v. Union of of India and Others, Jt 1989 (2) S.C 34 and Praful Kumar Sinha v. State of Orissa, Jt 1989 (2) S.C. 578.
(9) The conclusions arrived at in all these cases apply with equal force to the circumstances of the present case.
(10) The Supreme Court in Gazi Khan alias Chotia v. State of Rajasthan & Anr, has quashed the detention order on the ground of 520 7 days unexplained delay in consideration of the representation of the petitioner. On careful consideration of all these judgments, the legal position which emerges is crystal clear that a long, unreasonable, and unexplained delay in consideration of the petitioner's statutory representation is violative of the petitioner's fundamental right under Article 22(5) of the Constitution of India. Learned Counsel for the petitioner was justified in not urging other grounds taken in the petition.
(11) The impugned detention order dated 6.2.91 is hereby quashed. The petitioner shall be set at liberty forthwith unless he is required to be kept in custody for some other case. Consequently, Rule is made absolute and the writ petition is allowed.