Karnataka High Court
Sri Tirupathi Plastics vs Assistant Collector Of Customs And Ors. on 5 February, 1990
Equivalent citations: 1990(27)ECC92
ORDER M.P. Chandrakanthraj Urs, J.
1. The petitioner is a partnership firm carrying on its business at Bangalore, a small-scale industry engaged in the manufacture of plastic bangles and moulding articles. They imported certain consignments of raw material and invoice value was shown at U.S. $650. The correctness of the valuation was questioned by the Customs Authorities at Bangalore (respondents 1 and 2). They issued a show cause notice to the petitioner calling upon him to show cause why the invoice value should not be raised to $4000 as other importers of the same raw material had shown the value ranging from $1600 to $4000. Aggrieved by such a show cause notice, petitioner approached the Appellate Tribunal. Appellate Tribunal found in his favour and fixed the value of the goods at U.S. $750. An appeal filed by the Department to the Supreme Court did not meet with success. Thereafter when the petitioner called for release of the goods to him on paying the customs duty at the value fixed by the appellate authority, he has been refused the same inter alia on the ground that he is liable to pay demurrage charges. It is in that circumstance that the third and fourth respondents are parties to these proceedings. They are the Manager, Inland Container Depot, Southern Railway, Contonment Railway Station, Bangalore and Chief Marketing Superintendent, Southern Railway, Madras.
2. It is not in dispute that the goods detained were given to the custody of the third respondent. As per Public Notification, Notice No. 21/81 (Custom) dated 7-8-1981, Southern Railways are the approved custodians in terms of Section 45 of the Customs Act, 1962. This Court had occasion to consider the rights of the importers, whose goods have been detained and what relief may be given to them when they succeed before the higher authorities in so far as it relates to waiver of demurrage. In the case of Equipment Sales Corporation v. Assistant Collector of Customs , a learned Judge of this Court ruled that though there were no rules or regulations under which a detention certificate could be issued by the Department, it was by virtue of the decisions of the Courts that such detention certificates are being issued by the Customs and other authorities. He also observed in the course of the order--a demurrage waiver certificate must necessarily follow in all cases where detention certificate has been issued. If correctly understood what the decision lays down is that when the goods are detained for whatever reason by the Customs Authorities and given to the custody of the approved custodians of such detained goods pending adjudication of rival claims between the Department and the importer, a detention certificate or an order detaining the goods must be furnished to the importer so that there is evidence of detention and the reason there for. It also acts as a receipt of the goods by the Department which, in turn, is entrusted to the custody of the approved custodians. When the dispute between the importer and the customs authorities is resolved by a procedure known to law, if the Department succeeds in justifying its retention, then the burden of payment of demurrage will necessarily fall on the importer. If it is otherwise, the Department must necessarily take on the liability of meeting the demurrage charges of the approved custodian. To hold otherwise would be unjust to the person who has met with success in his litigation with the Department.
3. Learned Counsel for the respondents 1 and 2 submitted that the decision in Equipment Sales Corporation's case had no application to the facts of the present case. I do not see how it has no application. The Appellate Tribunal in the instant case raised the invoice value from U.S. $600 claimed by the importer to U.S. $750 as a reasonable value of the goods imported for the purpose of levying duty. That has no resemblance whatsoever to the invoice value proposed in the show cause notice at U.S. $4510. Therefore, to say that the petitioner has not met with success in his litigation is to refuse to look at the obvious and keep themselves blind-folded. That attitude of the Department must be discouraged.
4. As held by this Court in Equipment Sales Corporation's case, if a retention certificate had been issued in the instant case it should have been necessarily been followed with a demurrage waiver certificate as a matter of course. On the other hand, respondents 1 and 2 appear to be smarting under the adverse decision given and allowed the goods to remain uncleared by not issuing demurrage waiver certificate to enable the petitioner to clear the same from the third respondent's custody.
5. Mr. Srinivasan appearing for respondents 3 and 4 submitted that somebody has to pay his charges, being the custodian in position of a bailee and having incurred expenditure to discharge his obligations as such bailee. That is a matter between him and the person who entrusted the goods to his custody. But certainly it cannot be said that petitioner should bear the expenditure for the goods detained for no fault of his.
6. In the circumstances, following the decision in Equipment Sales Corporation's case, I must reject the contention of learned Counsel for respondents 1 and 2 that it has no application to the facts of the case. This Writ Petition is allowed. Rule will issue directing respondents 1 and 2 to issue necessary demurrage waiver certificate and correspondingly on such certificate being produced, respondent-3 shall release the goods in favour of the petitioner without insisting upon any charges being paid by the petitioner.
Rule will accordingly issue and be made absolute.