NATIONAL INDUSTRIES Vs. ASSISTANT COLLECTOR OF CUSTOMS MADRAS

JUDGEMENT

(1.) THE appellants herein imported steel plates under an import licence dated 21-6-1971 from Japan and United Kingdom. On importation of the goods, the necessary bills of entry were filed. But the goods were detained by the Customs authorities for customs purposes and after some delay, the goods were allowed to be cleared by the appellants. For the period during which the goods were detained by the customs authorities, the petitioners sought the issue of detention certificate so as to enable them to claim the concessional rate of demurrage from the Port Trust authorities. THE customs authorities gave detention certificates in respect of certain period but refused to give such a detention certificate for other periods on the ground that the detention of the goods during that period was due to the fault of the appellants'clearing agents and that therefore the detention certificate could not be issued for that period. THE appellants thereafter moved this court for the issue of a Writ in the nature of mandamus directing the first respondent, the Assistant Collector of Customs, to issue the detention certificate with respect of the consignment for the period for which the certificate was refused by the Customs authorities, on the ground that the detention of the consignment during that period was not due to the default committed by the appellants or their clearing agent. Though the said writ petition was admitted and rule nisi was issued, Koshal J. before whom the matter came up for final disposal dismissed the same following a Division Bench decision of this court inCollector of Customsv.M.P. Works, 1977 AIR(Mad) 61, which had held that there is no statutory or other public duty cast on the Customs authorities to issue a detention certificate. THE decision of Koshal J. has been challenged in this writ appeal.

(2.) THE appellants even at the admission stage questioned the correctness of the Bench decision above referred to, and contended that the said decision required a reconsideration. A Division Bench of this court which admitted the writ appeal wasprima facieinclined to take the view that the Bench decision of this court inCollector of CustomsvM.P. Works, 1977 AIR(Mad) 61, that there is no public or statutory duty cast on the Customs authorities to issue the detention certificate, may require reconsideration. It is in that view that the writ appeal has been posted before us and the order of reference is as follows :- "Koshal J. as a single Judge of this court was naturally bound by a pronouncement made by a Division Bench of this court, consisting of Kailasam, Offg. C.J. and Balasubrahmanyan J. in the case reported inCollector of Customsv.M.P. Works, 1977 AIR(Mad) 61. We areprima facieof the view that this Division Bench decision requires reconsideration in public interest. Whilst, therefore, admitting this writ appeal, we direct that this appeal be posted before a Full Bench." Thus, the main question to be considered by us in this appeal is whether a mandamus could be issued to the Customs authorities to issue a detention certificate when the consignment is detained for customs purposes, and whether the Customs authorities are under a legal duty to issue the detention certificate which can be enforced by a Writ of mandamus.

(3.) ON a due consideration of the relevant provisions of the Customs Act, and the Madras Port Trust Act, as also Chapter IV of the Scales of Rates dealing with demurrage framed under Section 42 of that Act, we are clearly of the view that the importer's right to get a detention certificate, if the goods are detained for customs purposes, flows from Section 17(1) of the Customs Act, and not from the public notice jointly issued by the Port Trust and the customs authorities as assumed by the Division Bench. Section 45(1) of the Customs Act, 1962 1977 AIR(Mad) 61, cannot be decisive on the question as to whether the Customs authorities are under a duty to issue a detention certificate or not. Even assuming that the public notice is in any way relevant, the terms of the public notice appears to contemplate a duty on the part of the Customs authorities to issue a detention certificate. It is true that paragraph 9 of the public notice states that detention certificates are not granted under any of the provisions of the Customs Act so that a refusal by an officer of customs for the grant thereof is not appealable under the Customs Act, though it is open to the party to make representation against any decision to the next higher authority. The above paragraph, however, indicates that the grant or refusal of a detention certificate by the Customs authorities is a decision and the party affected can make his representation against such a decision to the next higher authority. lt is no doubt true that the issue of a detention certificate is not under any of the provisions of the Customs Act and it is on that basis paragraph 9 says that it is not a duty contemplated by the Customs Act and an appeal could be preferred against the refusal under the Customs Act. That merely states the obvious. If the issue of a detention certificate is not under the provisions of the Customs Act, then the refusal cannot be challenged by way of an appeal under the Customs Act. Though it is not a duty performed under the provisions of the Customs Act, still it is a duty imposed under Section 17(1) of the Customs Act read with the public notice issued jointly by the Port Trust and the Customs authorities. As already stated, the Customs authorities have issued detention certificates for certain periods, and it is not their case that they are not bound to issue detention certificate at all. Therefore, we are not inclined to agree with the view expressed inCollector of Customsv, M.P. Works, 1977 AIR(Mad) 61, that the Customs authorities are not under a duty to issue detention certificate as there is no statutory duty cast on them. We are of the considered view that the Customs authorities are under a public duty to issue a detention certificate in the circumstances contemplated under Rules 13(a) and (b) of the scales of rates fixed by the Port Trust, and that the above decision holding contra is not good law.9.In this case, the Customs authorities have refused to issue detention certificates for the reason that the detention of the goods was attributable to the fault of the appellants and their clearing agents. This assertion has not been gone into by the learned single Judge as the dismissal of the writ petition was on the ground that the Customs authorities are under no statutory or public duty to issue the detention certificate. Now that the basis of the dismissal of the writ petition has been found to be not tenable, the writ appeal is allowed and the order of dismissal of the writ petition is set aside and the writ petition is restored to the file. The learned single Judge will dispose of the same on the merits. There will be no order as to costs in this appeal.