Delhi High Court
Yang Ming Marine Transport Corporation ... vs Commissioner Of Customs And Ors. on 31 May, 2002
Author: S.B. Sinha
Bench: S.B. Sinha, A.K. Sikri
JUDGMENT S.B. Sinha, C.J.
1. This writ petition has been filed by the petitioners herein for release of 26 containers, which arrived in New Delhi from Dubai between 05.09.1999 to 25.09.1999 carrying furnace oil. Such import was made by M/s. Om Petro Chemicals Ltd. The consignment was held up by respondent No. 1 and respondent No. 2 on the ground hat furnace oil contained in the drums loaded on to these containers are hazardous substance and as such the same is not liable to be cleared by respondent No. 1.
2. A writ petition was filed before this Court being C.W.P. No. 4082 of 2000 praying for release of the said consignment. In the said writ petition inter alia it was contended that the import of the goods was not illegal. This court also agreed with the said contention keeping in view the fact that in a situation of this nature the goods should not be released on the ground that the same had since been declared to be hazardous substance, but the demurrage charges therefor need not be paid by the importer. It was held that the Customs Department should directed to bear the demurrage charges. This Court, therefore, having regard to the fact situation obtaining therein directed:-
"28. We, therefore, are of the opinion that the interest of justice would be met, if the Central Govt. is directed to take possession of he goods for which the clearance shall be given by the Customs Authorities forthwith and in case and necessity arises the same may be used or destroyed in any manner they like, or as may be advised by the Central Pollution Control Board, Demurrage, if any would be paid by the Customs Authorities to the concerned department. The petitioner herein shall not claim the price of the said goods or any damage from the respondents."
3. The parties to the said writ petition did not thence point out that the containers have also been detained and detention charges are also liable to be paid.
4. It is admitted that although the said judgment was delivered as far back as on 20.12.2001, no step has been taken by the respondent to take possession of the said goods and clear the containers. This writ petition was filed on 06.04.2002. Inefficiency and red tapism of the State Government even at that point of time did not come to an end.
5. A Division Bench of this Court had heard the matter on several dates and having regard to the fact that this Bench had delivered the aforementioned judgment on 20.12.2001 in C.W.P. No. 4082 of 2000 in Om Petro Chemicals v. Union of India and Ors., directed the matter to be placed before us.
6. A counter affidavit has been filed before this Bench only on 13.05.2002. In that counter affidavit, it has been disclosed that the respondents are in the process of filing a SLP against this Court's Order dated 20.12.2001.
7. Indisputable withholding of containers for such a long time without any reason whatsoever not only causes hardship to its owners, but also to all concerned. It is a matter of great regret that the authorities of the Central Government did not think over the subject at all and caused loss not only to the owners of the containers, but deprive others to use the same.
8. It has been accepted that the furnace oils are contained in drums and the drums are placed in containers. In a case of this nature, one could have thought that the Central Government as a protector of environment would take an expeditious decision to the satisfaction of all concerned, but tour great dismay it failed and/or neglected to do so. After all, one day or the other, somebody has to take possession of the hazardous substance. They have to be stored at an appropriate place before either he same is put to any use, which would not cause any environmental problem or has to be destroyed. It is really beyond anybody's comprehension as to why a decision was not taken by the appropriate authority for such a long time.
9. In a similar situation, a Division Bench of the Bombay High Court in Writ Petition No. 3570 of 2001 in Icon Line and Anr. v. Commissioner of Customs and Ors. directed release of the containers.
However, it appears that the Apex Court in Research Foundation For Science v. Union of India and Ors, . had issued certain directions.
10. The question involved in this writ petition does not have any bearing on the application pending before the Supreme Court. It is one thing to say that the Apex Court is to issue a direction as to how and in what manner the hazardous substance is to be dealt with and it is another thing to say that the hazardous substance is to be taken possession from the containers. It will bear repetition to state that today or tomorrow, the Central Government has to take appropriate action irrespective of the question as to who, in the aforementioned situation would be liable to pay and bear the demurrage charges or detention charges.
11. We may notice that Mr. Jayant Bhushan, the learned counsel appearing on behalf of respondent No. 1, accepts that the demurrage charges would include detention charges in the facts and circumstances of this case.
12. We, therefore, are of the opinion that subject to an undertaking, which may be furnished by the petitioners herein that in the event the Supreme Court directs that detention charges are to be borne by the writ petitioners herein or by M/s. Om Petro Chemicals, it is desirable that the containers are directed to be released forthwith.
If some of the drums in which the furnace oil is stored are leaking, as has been suggested by Mr. Jayant Bhushan, in our opinion, the same itself cannot be a ground for not releasing the containers. The Central Government must within two (2) weeks from today find out an appropriate place for storing the furnace oil.
13. We may note that in our judgment dated 20.12.2001 passed in C.W.P. No. 4082 of 2000 in Om Petro Chemicals's case ( Supra), it was noticed that the goods contained acid varying from 0.25% to 0.15%. This Court, therefore, was of the opinion that the goods in question are not such substance, which cannot be used for any purpose whatsoever.
14. We,therefore, direct that subject to an undertaking filed by the petitioners herein that it shall, in the event, any contrary direction is issued by the Supreme Court, pay the detention charges, the Central Government must hand over the containers as early as possible and not late than three (3) weeks from the date of communication of this Order.
15. With the aforementioned observations and directions, this writ petition is disposed of with no order as to costs.