KOTHARI OPTICAL INDUSTRIES Vs. UNION OF INDIA

JUDGEMENT

(1.) The prayer in the writ petition is as follows:

(2.) The petitioner imported two consignments of 250 metric tonnes and 170 metric tonnes of electrolytic tinplate waste/waste soft and bright from M/s. Euro Metal Ltd., United Kingdom. The petitioner filed bills of entries for the clearance of the consignments and the Assistant Collector of Customs, Madras, passed an order enhancing the value of the imported goods stating that it was not known as to whether the goods conformed strictly to the different specifications mentioned in the relevant indents except for the sizes and thickness. Hence the Assistant Collector of Customs ordered assessment of the goods adopting the F.O.B. value as 204 per metric tonne (MT). The petitioner thereafter filed an appeal before the Collector of Customs (Appeals), Madras, the second respondent herein. The appeal was allowed by an order dated 24.7.1987 holding that the order of the lower authority enhancing the value of the goods is not correct in view of the decision reported in Rakesh Press v. Collector of Customs, Bombay and in Babcock Venkateswara Hatcheries (P) Ltd., v. Collector of Customs, Bombay and Tara Art Printers v. Collector of Customs, Bombay and accordingly set aside the order of the Assistant Collector of Customs. During the pendency of the proceedings before the Assistant Collector of Customs, the petitioner had to clear the goods to avoid heavy demurrage and as such, the petitioner had paid Rs. 4,95,875/- and Rs. 1,63,476/-respectively as demurrage charges for the two consignments and it was only subsequent to the clearance of the goods, the appeal was preferred to the Collector of Customs (Appeals) who agreed with the invoice value and the customs had since granted refund of duty. It is alleged that the delay in the clearance of the consignments was due to no fault of the petitioner and it was, in fact, beyond the control of the petitioner. The Customs Authorities after carefully examining the facts had granted 12 detention certificates in respect of the consignments covering the period of detention. The detention certificates also made it clear that the detention was due to no fault or negligence of the importer and that it was due to the ordinary process of appraisement. The petitioner made a representation to the third respondent on 17.9.1987 for the return of the demurrage amount. The Port Trust, Madras, the third respondent, by letter dated 25.11.1987 requested the petitioner to forward the detention certificates early and the petitioner delivered the detention certificates relating to 12 bills of entries to the third respondent on 17.11.1988 with a request to waive the full demurrage charges as per the detention certificates issued by the customs authorities. By letter dated 26.12.1988 the third respondent replied to the petitioner that there is no provision in Madras Port Trust Scale of Rates for waiver of demurrage charges for the goods which were detained by the Customs for examination under Section 17(3) and 17(4) of the Customs Act. As such, the third respondent-Port Trust informed the petitioner its inability to consider the request of the petitioner for the waiver of the demurrage charges. Aggrieved by this order, the petitioner has come to this Court with the prayer stated supra.

(3.) The main allegations in the affidavit filed in support of the writ petition are that the detention of the goods has been done by the Customs authorities for their own purposes of assessment and when all the documents and particulars necessary for assessing the bills of entries were made available to the authorities and when there was no delay on the part of the petitioner in the matter of furnishing the details necessary for making the assessment, the Customs authorities ought to have assessed it with due expedition. It is also alleged that the loading of value by the Assistant Collector of Customs did not find favour with the Collector of Customs (Appeals) and that the Collector of Customs (Appeals) has directed the assessment to be made as per the invoice value which would mean that there was no proceeding for loading the value. It is further alleged that the detention of he goods cannot be attributed to any fault or negligence on the part of the importer/petitioner and in view of the judgment of a Full Bench of this Court reported in National Industries v. Assistant Collector of Customs, Madras 1980 ELT 128 (Madras) the Customs authorities are bound to issue a detention certificate for the entire period of detention and the third respondent-Madras Port Trust is equally bound by such a certificate. Accordingly, it is alleged that the communication of the third respondent dated 26.12.1988 is one declining jurisdiction.