G. S. N. TRIPATHI, J. ( 1 ) THIS is a petition under Article 226 of the Constitution of India. The following reliefs have been prayed : i. to issue a writ, order or direction in the nature of certiorari, quashing the demand for payment of warehousing charges amounting to Rs. 4,11,612. 50 by the respondent in its letter No. CN/mnr/imc/90-91/166, dt. 22-5-1990 (Annexure 17) ii. issue a writ, direction or order in the nature of mandamus directing respondents to deliver the goods of the petitioner warehoused under warrant of goods Book No. , 00360 and S. I. No. 017984 to 017994 dated 23-10-1987,29-10-1987,26-10-1987,27-10-1987,28-10-1987,30-10-1987/12-11-1987 and 16-11-1987. iii. issue any other writ, direction or order which the petitioner may be found entitled to according to law and iv. award the cost of the writ petition to the petitioner. ( 2 ) THE petitioner is admittedly a firm carrying on the business of manufacturing of tin containers under the name and style of Tin Manufacturing Company of India, having its factory at Mohan nagar in the district of Ghaziabad. The petitioner manufactures tin containers from Tin Plates waste/ Waste (hereinafter referred to as TPWW ). The containers are manufactured from MS plates but the MS sheets are of very inferior quality in comparison to TPWW. The petitioner is registered with the D. G. T. and D as an industrial undertaking manufacturing metal containers and agricultural implements. In the manufacture of metal containers generally tin plates Taste/waste are used as raw materials and for agricultural implements MS plates or MS sheets (defective) are used for the same. ( 3 ) THE petitioner placed an order for import of 500 metric tons of tin plates waste of Maxican origin on M/s. MILL Exports Inc. . Perrine Avenue, New Jersey 08638 U. S. A. , through their local contact M/s. M. S. Puri and Company, New Delhi. The price for tin plates etc. was agreed to be paid @ 270/- U. S. Dollar per metric ton F. O. B. Maxican Port. An L/c bearing No. M-l-835/27, dated 13-3-1987 was opened with Bank of Maharashtra, New Delhi in favour of the suppliers. It was agreed that part shipment of the total quantity purchased will be allowed. As per orders aforesaid the suppliers M/s. Mill Exports Inc. New Jersy, U. S. A. despatched the goods in two lots. An L/c bearing No. M-l-835/27, dated 13-3-1987 was opened with Bank of Maharashtra, New Delhi in favour of the suppliers. It was agreed that part shipment of the total quantity purchased will be allowed. As per orders aforesaid the suppliers M/s. Mill Exports Inc. New Jersy, U. S. A. despatched the goods in two lots. The petitioner filed four Bills of Entry for the aforesaid two lots of the tin plates/waste described in the invoices of the suppliers and the same were examined. However, the goods covered by Bill of Entry No. 2071/295 of the aforesaid lot number 1 were only available for examination, whereas, the goods covered by the rest of the three Bills of Entry Nos. 2071/84, 2080/225 and 2080/1999 had partly been overcarried and were expected to arrive later. The said examination of the goods available was taken up in the presence of the clearing agents. ( 4 ) WHEN the first container was opened for examination, the clearing agent noticed that it did not contain the goods ordered for, but it contained mild steel instead of tin plates waste as per invoice. The Shed Appraiser was asked to suspend examination of the contents of the remaining containers. The petitioner suspected some foul play on the part of the exporter in U. S. A. The petitioner also made a written request to the Asstt. Collector of, Customs, New Customs House, bombay, for full examination of the goods of the aforesaid two lots and ascertain the weight and correct description of the goods and to allow the amendment in the Bills of Entry with regard to the description of the goods, its weight and value so that correct customs duty may be assessed thereon (Annexure -2 to the petition ). The Asstt. Collector, Customs inspected the goods and reported that the goods are M. S. Defective sheets (Annexure 3 to the petition ). In view of the report, the Asstt. Collector was of the view that the petitioner had imported the goods by giving mis-description thereof and the goods are liable to be confiscated. The goods of the petitioner were accordingly detained by the Asstt. Collector, Customs from 23-9-1987 to 10-10-1987, vide detention certificate Annexure 3a. In view of the report, the Asstt. Collector was of the view that the petitioner had imported the goods by giving mis-description thereof and the goods are liable to be confiscated. The goods of the petitioner were accordingly detained by the Asstt. Collector, Customs from 23-9-1987 to 10-10-1987, vide detention certificate Annexure 3a. Since in view of the above report it was not possible to clear the goods within next three months, the petitioner wrote to him on 13-10-1987 (Annexure-4 to the writ petition) requesting him that the goods may be bonded for the time being in the bounded warehouse. The Asstt. Collector acceded to his prayer and passed an order on 14-10-1987 in these terms : "no ex-bonding should be allowed unless no objection is obtained from Group A. C. " Later on the goods were warehoused at the Mohan Nagar warehouse, Ghaziabad (Annexure 4a to the petition ). ( 5 ) BY its letter dated 1-12-1987, the petitioner requested the Asstt. Collector to allow him ex-bonding of the goods after reassessing them as petitioner required them for home consumption. The goods were not released (Annexure-5 to the petition) On 5-12-1987, the petitioner approached the Collector Customs requesting him to release the goods on provisional assessment or convert the bill as goods for home consumption in view of the pendency of the dispute and bonding to be taken under Section 49 of the Customs Act, 1962 (Annexure 6 to the petition ). But the Collector Customs ordered on 29-12-1987 that the goods be confiscated under section 111 (m) of the Customs Act, 1962 and gave an option to the petitioner under Section 125 of the Act to redeem the goods on payment of redemption fine of Rs. 10 lacs. A penalty of Rs. 1 lakh was also imposed on the petitioner under Section 112 of the Act. (Annexure-7 to the petition ). The petitioner informed the Collector that it intended to file appeal as per its letter dated 3-1-1988 (Annexure 8 to the petition ). The petitioner accordingly filed an appeal under section 129a (1) of the Act before the Customs, Excise Gold (Control) Appellate Tribunal. The tribunal by its order dated 9-9-1988 set aside the order of the Collector and remanded the case for fresh adjudication (Annexure-9 to the petition ). The petitioner accordingly filed an appeal under section 129a (1) of the Act before the Customs, Excise Gold (Control) Appellate Tribunal. The tribunal by its order dated 9-9-1988 set aside the order of the Collector and remanded the case for fresh adjudication (Annexure-9 to the petition ). The petitioner, thereafter, was called upon by the Collector to show cause by the notice dated 7-12-1988 and explain as to why he should not be held liable for contravention of Import Control Regulations and for offences under Section 111 (1) (m) of the Act. But by letter dated 3-4-1989 Appraising Group New Customs House, bombay informed the petitioner that the Collector by his order dated 25-1-1989 had decided that the charges contained in the show cause notice dated 7-12-1988 supra be dropped. The Collector held that there was neither an intent, no knowledge either for misdeclaration in the description of the goods or for their under valuation on the part of the petitioner, (annexure-10 to the petition) ( 6 ) ON receipt of the aforesaid orders /letter, the petitioner by its letter dated 6-4-1980 approached the Asstt. Collector, Customs, Ghaziabad that since the dispute having been settled finally, they were submitting five revised Bills of Entry and requested to convey the final figures of customs duty which the petitioner is liable to pay for debonding of the goods by 12-4-1989. (Annexure-11 to the petition ). In the meantime, the valuation of the goods was also reduced on 1-12-1989 by the Collector Customs Bombay vide his order dated 10-2-1989. ( 7 ) BY the letter dated 30-11-1989, the Collector Customs also wrote to the Central Board of excise and Customs that interest on the customs duty should be waived in the facts and circumstances of the case. It was pointed out by him in the said letter that it was a case of commercial fraud on the part of foreign suppliers in despatching goods of lesser value and there was no case for proceedings in terms of Sections 111 and 112 of the Act against the petitioners. He recommended for waiver of interest for the extended period of warehousing also. (Annexure-12 to the petition ). The petitioner again by its letter dated 2-4-1990 wrote to the superintendent of the Bonded warehouse for ex-bond clearance reiterating its earlier prayer. But no action was taken. He recommended for waiver of interest for the extended period of warehousing also. (Annexure-12 to the petition ). The petitioner again by its letter dated 2-4-1990 wrote to the superintendent of the Bonded warehouse for ex-bond clearance reiterating its earlier prayer. But no action was taken. It prayed for clearance of the Bills of Entry for ex-bonding of the goods on payment of duty (Annexure 13 to the writ petition ). Again on 9-4-1990, the petitioner reiterated its same request (Annexure 14 to the petition ). ( 8 ) THE respondents by the letter dated 9-11-1990 informed the petitioner that it had to pay the duty according to present rate of duty under Section 15 (b) of the Act. It was also directed to file ex-bond Bills of Entry, failing which action under Section 72 (2) would be initiated against it. (Annexure 15 to the petition ). The petitioner challenged the directions contained in the letter dated 9-4-1990 (Annexure 15) by Writ Petition No. 580 of 1990 before this Court. The recovery proceedings were stayed as per amended order dated 23-5-1990 (Annexure 16 to the petition ). ( 9 ) THE petitioner approached the Warehousing Corporation to release the goods whereupon, the manager Warehouse, Sahibabad, Ghaziabad has issued a letter dated 22-5-1990 calling upon the petitioner to pay Rs. 4,11,612. 50 paisa as warehousing charges, on payment of which, the goods would be released (Annexure 17 to the petition ). ( 10 ) THE petitioner has urged that the goods imported by it were never taken out of the customs area. They remained throughout in the custody of the customs authorities all through on the ground of breach of Customs Act, which were later on proved to be non est. The goods were confiscated under Section 111 of the Customs Act and option of redemption was given. Ultimately the order was cancelled and interest was also waived. It was found by the customs authorities that the petitioner is not guilty of violation of any provision of the Act and unnecessarily the delivery was not given to the petitioner despite repeated requests. Ultimately the order was cancelled and interest was also waived. It was found by the customs authorities that the petitioner is not guilty of violation of any provision of the Act and unnecessarily the delivery was not given to the petitioner despite repeated requests. ( 11 ) ACCORDING to provisions of Section 49 of the Customs Act when a dispute arises in respect of the goods imported by any person, the goods may be detained in a bonded warehouse and provisions of Chapter IX of the Act do not apply to such warehoused goods. Section 63 of the customs Act provides for levy of the warehousing charges on the owner of the goods when imported goods are warehoused by him voluntarily for a period of three months or above. Thus the alleged demand is prima facie hit by the provisions of Section 49 of the Act and is wholly unauthorised and illegal. The detention of the goods by the Customs authorities is causing heavy loss of Rs. 50,000/- per day to the petitioner company. Therefore, this petition was filed for the reliefs aforesaid on 20-5-1990 ( 12 ) ON 30-5-1990, this Court passed the following order on the stay application : "the petitioners goods will not be detained in the warehouse merely on the ground of charges which are sought to be recovered under the impugned order dated 22nd May, 1990, contained in annexure 17 to the writ petition, subject to the condition that the petitioner furnishes a bank guarantee of Rs. 4,11,612. 50 paisa and files the same before respondent No. 1 within a week. " ( 13 ) IN the counter-affidavit filed by Shri U. C. Sharma posted as Warehousing Manager, Central warehousing Corporation, Ghaziabad, it has been alleged that under the provision of Customs act all the importers are supposed to store their goods with the warehouse keeper appointed by the Collector, Customs, under strict supervision of the Customs staff. The Central Warehousing corporation, Mohan Nagar, Ghaziabad is such a warehouse meant for storage of goods and various importers of the imported goods pending customs clearance and payment of customs duty and other charges. As per established procedure warrants are issued by the warehouse keeper always in favour of Asstt. The Central Warehousing corporation, Mohan Nagar, Ghaziabad is such a warehouse meant for storage of goods and various importers of the imported goods pending customs clearance and payment of customs duty and other charges. As per established procedure warrants are issued by the warehouse keeper always in favour of Asstt. Collector, Customs as the ownership of the goods goes to the importer only on payment of customs duty and warehousing charges in full and all these points are very clearly mentioned in the warrant issued in favour of the petitioner for the consignment deposited by them. The goods as such were deposited by the petitioner only and not by the customs authorities vide the letters of request filed (CA 1 and CA 2 ). The petitioner did not approach the Warehousing Corporation with proper documents i. e. green Bill of Entry duly discharged by Asstt. Collector, Customs inasmuch as the petitioner approached the Warehousing manager, vide its letter dated 18-5-1990 (Annexure-CA 3 ). The customs authorities have clearly mentioned in their letter dated 2-7-1990 that at no point of time the goods were confiscated by them (Annexure-CA 5 ). The petitioner had pledged the goods with the Bank of Maharashtra obviously claiming ownership of the goods (Annexure-CA 6 ). It is incorrect to say that the goods were not warehoused by the petitioner and Section 63 of the Act is accordingly not attracted. As the goods were deposited by the petitioner, he is liable to pay all the warehousing dues and the demand notice has been accordingly issued. At no point of time the petitioner ever raised any dispute for non-payment of storage charges and warehousing charges, including insurance charges from August, 1987 to February, 1990. The petitioner has not lifted the entire goods and so he is liable to pay the entire dues till date or final lifting. Charges from 20-8-1987 to 29-10-1990 have already been paid by the petitioner vide SCA 1 to SCA 5. Hence the balance of charges should also be paid by them. The petitioners took delivery of stock against the Bill of Entry discharged by the Customs authorities as per practice. In the supplementary counter-affidavit, it is alleged that as per established procedure, the importer makes a request for reservation of space at the warehouse for an initial period of 4 weeks, then the space certificate is issued. The petitioners took delivery of stock against the Bill of Entry discharged by the Customs authorities as per practice. In the supplementary counter-affidavit, it is alleged that as per established procedure, the importer makes a request for reservation of space at the warehouse for an initial period of 4 weeks, then the space certificate is issued. The petitioner was allowed to take away the goods under the orders of this Court after furnishing bank guarantee. Further it had paid the balance warehousing dues to the Central Warehousing corporation to the extent of Rs. 13,651/- and Rs. 56,494. 50. It has taken flimsy grounds for escaping its liability to pay a sum of Rs. 4,11,613/- by taking flimsy plea of storage under section 49 of the Customs Act. ( 14 ) THE petitioner unloaded the imported goods at Bombay and on its request the imported goods were permitted by the Asstt. Collector, Customs to be transported from Bombay to Ghaziabad under bond as per stipulations contained in Section 69 of the Act. As per the bond entered into by the petitioner, the goods were warehoused and thus the warehousing was done under the provisions of Chapter X of the Act and not under Section 49 as alleged. ( 15 ) IN its rejoinder affidavit, the petitioner has alleged that even though the dispute was decided in its favour on 3-4-1989 and the proceedings were ordered to be dropped, its goods was released in its favour after a year even after a favourable decision in favour of the petitioner. But the petitioner was ordered to pay interest on customs duty for the period when the goods were under detention under the Asstt. Collector, Customs. On an appeal, the Board of Central Excise and customs by its order dated 12-4-1990 waived the same on the ground that the petitioner was not responsible for detention of the goods and their unnecessary detention. ( 16 ) IN the rejoinder affidavit, it has also been alleged that the petitioner applied for release of the goods, which had been detained by the customs authorities. It was required to fill up the proforma but the customs authorities decided to detain the goods and did not release them. The goods were warehoused under the orders of the Asstt. Collector. It was required to fill up the proforma but the customs authorities decided to detain the goods and did not release them. The goods were warehoused under the orders of the Asstt. Collector. It is wrong to say that the warrant for warehousing was filled by the petitioner and the goods were deposited by the petitioner and not by the customs authorities. As the goods were confiscated by the respondents, the title in them did not pass to the petitioner hence deposit in the warehouse could not be termed as one done by the petitioner. Unless the green bills are cleared by the Asstt. Collector, they could not be produced before the Manager, Central Warehousing Corporation by the petitioner. But soon after the dispute raised by the customs authorities was settled, the petitioner approached the Asstt. Collector and Warehousing Corporation for delivery of goods to it. ( 17 ) SINCE the goods were not released by the customs authorities due to dispute about the customs duty, the Asstt. Collector Customs himself deposited the goods. It was clearly mentioned in the warrant of deposit that on clearance of dues, the goods will have to be delivered to the petitioner. ( 18 ) WE have heard learned counsel for the parties and gone through the record. We find that the relevant issues involved in this case have not been properly examined by the Assistant Collector, customs, and the Central Warehousing Corporation. It seems that the points involved in this case have not been properly dealt with and the respondents have issued the notice of demand straightaway which deserves to be quashed and the matter requires reconsideration at the stage of assistant Collector, Customs, Respondent No. 2 in this case. ( 19 ) THE undisputed facts are that on 17-8-1987 the goods were entered in the customs domain at bombay. ( 20 ) THERE was some dispute regarding the payment of duty and the goods were confiscated on 29-12-1987 under Section 111 (m) of the Act by the Collector, Customs Bombay (Annexure-7 to the petition ). Penalty of rupees one lac was also imposed, apart from an order to pay ten lacs as redemption fine. Soon thereafter the petitioner moved an application on 3rd January 1988 (Annexure-8 to the petition), in these words : "we have thereafter chosen to go in appeal to Tribunal which may take sufficient time in deciding our appeal. Penalty of rupees one lac was also imposed, apart from an order to pay ten lacs as redemption fine. Soon thereafter the petitioner moved an application on 3rd January 1988 (Annexure-8 to the petition), in these words : "we have thereafter chosen to go in appeal to Tribunal which may take sufficient time in deciding our appeal. It is therefore, requested to convert our material under Section 49 as the matter has become very much disputed. If you kindly refer our previous letter dated 5-12-1987 requesting for the change in Section 49, but there has been no response from your end. Please treat. it very urgent and important. " ( 21 ) IT is thus clear that firstly on 5-12-1987 and again on 3-1-1988 the petitioner chose to bring his case under Section 49 of the Act but as yet this application has not been decided. The reason for non-action on the part of the Asstt. Collector/collector, Customs, Bombay is not only intriguing but it appears to be the case of an international default on their part. Section 49 of the customs Act runs as below : "where in the case of any imported goods, whether dutiable or not, entered for home consumption, the Assistant Collector of Customs is satisfied on the application of the importer that the goods cannot be cleared within a reasonable time, the goods may, pending clearance, be permitted to be stored in a public warehouse, or in a private warehouse if facilities for deposit in a public warehouse are not available; but such goods shall not be deemed to be warehoused goods for the purposes of this Act, and accordingly the provisions of Chapter IX shall not apply to such goods. " ( 22 ) THE said section casts a liability on the parties, namely, on the importer to make an application which should be done without any loss of valuable time. Then the Assistant collector, Customs, was bound to record his satisfaction that the goods cannot be cleared within a reasonable time hence the goods may, pending clearance, be permitted to be stored in a public warehouse. . . ". This is a statutory duty which has not been carried out by the Assistant Collector despite initial application dated 5-12-1987 and with a request again on 3-1-1988 to do the needful. . . ". This is a statutory duty which has not been carried out by the Assistant Collector despite initial application dated 5-12-1987 and with a request again on 3-1-1988 to do the needful. However, the goods were kept in a warehouse initially at Bombay, later on shifted to ghaziabad, and the proceedings went on. The petitioner was under a reasonable belief that its application Under Section 49 must have been allowed as it has not been rejected so far. It proceeded with its right to file an appeal and get favourable orders on its claims. The aforesaid section confers a right on the importer that such goods shall not be deemed to be warehoused for the purposes of Chapter IX of the Act, in which Section 63 occurs and it is under this section purportedly that the payment of rent of warehouse charges etc. has been demanded giving grievance to the petitioner to approach this Court. Therefore, the Asstt. Collector, could not sit over this application of the petitioner for a pretty long time virtually till today and still call upon the petitioner to make payments. Here it is a clear case of dereliction of duty on the part of the asstt. Collector, Bombay. If the Asstt. Collector had rejected his application under Section 49, the petitioner could have moved higher authorities. But it could not do so and this valuable right was snatched away from it. ( 23 ) AGAINST the order of confiscation dated 29-12-1987 the petitioner moved the Customs, Excise and Gold (Control) Appellate Tribunal. The Tribunal by its order dated 9-9-1988 set aside the order of the Collector and remanded the case for afresh adjudication, (Annexure-9 to the petition ). Pursuant to the remand order the Collector issued a show cause notice dated 7-12-1988 to explain as to why he should not be held liable for contravention of Import Control Regulation or Offences Under Section 111 (1-m) of the Act. ( 24 ) ON cause being shown, the Collector by his order dated 25-1-1989 decided that the charges contained in the show cause notice dated 7-12-1988 be dropped. He further held that there was neither any intent nor knowledge either for mis-declaration in the description of the goods or for their undervaluation on the part of the petitioner (Annexure 10 to the petition ). The proceedings were consequently dropped by the order dated 3-4-1989. He further held that there was neither any intent nor knowledge either for mis-declaration in the description of the goods or for their undervaluation on the part of the petitioner (Annexure 10 to the petition ). The proceedings were consequently dropped by the order dated 3-4-1989. The goods were released after an year in favour of the petitioner even after decision in his favour. ( 25 ) THEN another battle started. The petitioner was directed to pay interest on the customs duty for the period when the goods were under detention of Asstt. Collector, Customs. The petitioner approached the Board of Central Excise and Customs for waiver of interest on the ground that the goods were illegally detained and the petitioner was not allowed to take delivery, hence no interest can be levied on it for the period for which the goods were under illegal detention of the respondents. The Board by its order dated 12-4-1990 waived interest on customs duty on the ground that the petitioner was not responsible for the unnecessary detention of goods, vide annexure-1 to the Supplementary Affidavit of Shri R. R. Goel. So it appears that throughout the petitioner has been harassed initially but it has got justice from higher authorities. ( 26 ) IN a desperate bid in his counter-affidavit filed by Shri U. C. Sharma dated 11-7-1990 in paragraph 9 it has been averred by the respondents that the customs authorities have clearly mentioned in their letter dated 2-7-1990 that at no point of time the goods were confiscated by them. In support of this averment C. A. 5 has been filed, which is clearly wrong on facts as mentioned above. The goods were confiscated by the Collector and later on they were released by the Board. We have already mentioned the documents which may be repeated, vide annexures 7 and 10 to the writ petition. So on facts the respondents have given a wrong affidavit. ( 27 ) THERE is another complication created by the supplementary counter-affidavit filed by Shri v. K. Dikshit, Manager of the Central Warehousing Corporation, Surajapur district Ghaziabad on 3rd September 1990. We have already mentioned the documents which may be repeated, vide annexures 7 and 10 to the writ petition. So on facts the respondents have given a wrong affidavit. ( 27 ) THERE is another complication created by the supplementary counter-affidavit filed by Shri v. K. Dikshit, Manager of the Central Warehousing Corporation, Surajapur district Ghaziabad on 3rd September 1990. In paragraph 3 of the said affidavit there is a mention of statement showing the datewise details of storage charges paid by the petitioner from 20-8-1987 to 28-10-1990 and in support of that charts Annexure - S. C. A. 1 to S. C. A. 5 have been filed. Still there was a claim of Rs. 4,11,612. 50. It is not clear as to for which period this demand is being made. ( 28 ) AGAIN in paragraph 5 of the counter-affidavit filed by Shri U. C. Sharma dated 11th July 1990, it has been alleged that the warrants are issued by the Warehouse Keeper always in favour of the Asstt. Collector, Customs as the ownership of the goods goes to the importer only on payment of customs duty and warehouse charges in full and these points are very clearly mentioned in the warrant issued in favour of the petitioner. An anomaly is thus created as the duty was not paid, the goods were already put under the detention of the customs authorities. Admittedly the ownership of the goods did not pass on to the petitioner then the question is very material as to under what circumstances the warehouse charges could be levied upon the petitioner. This matter also needs a threadbare examination at the hands of the Asstt. Collector. ( 29 ) ANOTHER difficulty that arises is that simply by issuing a demand notice under Section 63 of the Act, the warehousing charges cannot be claimed, because warehousing is a technical expression as contained in definition under Section 2 (43 ). Warehouse means a public warehouse appointed under Section 57 or a private warehouse licenced Under Section 58. Warehoused goods have been defined under Section 2 (44) meaning thereby, the goods deposited in warehouse. Warehousing is done Under Section 59. Warehouse means a public warehouse appointed under Section 57 or a private warehouse licenced Under Section 58. Warehoused goods have been defined under Section 2 (44) meaning thereby, the goods deposited in warehouse. Warehousing is done Under Section 59. It is essential that the provisions of Section 59 shall be attracted only if (i) the imported goods have been entered for warehousing, (ii) they have been assessed to duty under Sections 17 or 18, (iii) the importer has executed a bond binding himself in a sum equal to twice the amount of the excise duty, assessed on such goods. As yet, as per records, these goods have not been assessed to duty. The bond has not been executed in the sense that only a proforma bond was filed by the petitioner which was not accepted by the Assistant Collector, Customs. As yet, no order thereupon has been passed. This is a contractual obligation. All contracts on behalf of President of India will have to be executed (in writing) under Section 219 of the Constitution. Simply filing a proforma of bond without acceptance does not amount to execution of a bond. Hence for a bond to be effective it must be accepted in writing. As per records it has not been done so far. But we refrain from giving a categorical finding on this point as we think that this matter also needs a threadbare analysis at the hands of the Asstt. Collector. However, it is made clear that unless at all the statutory requirements of Section 59 are complete, it will not be safe to say that the goods had been "warehoused" by the petitioner because Section 60 of the Act provides as under : "60. When the provisions of Section 59 or 59a have been complied with in respect of any goods, the proper officer may make an order permitting the deposit of the goods in a warehouse. " therefore, here also some statutory obligations have to be discharged by the Asstt. Collector. Some of them are : (i) To ensure that all the formalities required under Section 59 or 59-A of the Act have been complied with: (ii) he should make an order (necessarily in writing) permitting the deposit of the goods in a warehouse. On the record there is no such evidence that the Asstt. Collector. Some of them are : (i) To ensure that all the formalities required under Section 59 or 59-A of the Act have been complied with: (ii) he should make an order (necessarily in writing) permitting the deposit of the goods in a warehouse. On the record there is no such evidence that the Asstt. Collector has examined as to whether both these conditions had been fulfilled and as to whether he had passed an order in writing permitting the deposit of the goods in the Warehouse. The Assistant Collector has to examine these things afresh and record a categorical finding on these points involved in this case in accordance with law. ( 30 ) RELIANCE has been placed by the learned counsel for the petitioner on the ruling of the Delhi high Court in the case of Rajeev Woollen Mills v. Union of India and Ors. 1987 (31) E. L. T. 639 (Delhi ). The relevant observations are contained in paragraph 14 as under : "if the imported goods are lying at the railway godown and importers are incurring heavy demurrage, it shall be for them to make an application under Section 49 of the Customs Act, 1962 and thereafter it will be for the Asstt. Collector to order the storage of the goods in question in a public or private warehouse pending determination as to whether the goods have been legally imported or whether they are excisable to customs duty. Therefore in case the importers make an application under Section 49, the Asstt. Collector shall decide the application without any delay. " ( 31 ) WE are in respectable agreement with the observations made by the Honble Judges of the delhi High Court in the aforesaid case. ( 32 ) AS against it an unreported judgment of the Gujarat High Court dated 30th September, 1991 in the case of Vareli Export Pvt. Limited v. Union of India and Ors. has been relied upon by shri. . . Shekhar Srivastava, learned counsel appearing for the respondents. The facts of that case are completely at variance with the facts before us. The goods in that case were not cleared for home consumption but were lodged in warehouse belonging to the Central Warehousing corporation. The petitioners thought it fit to relinquish their title over the said goods and not to clear the said goods for home consumption. The facts of that case are completely at variance with the facts before us. The goods in that case were not cleared for home consumption but were lodged in warehouse belonging to the Central Warehousing corporation. The petitioners thought it fit to relinquish their title over the said goods and not to clear the said goods for home consumption. Accordingly they wrote letters to that effect unconditionally relinquishing their title over the said goods on 28-1-1994 to the concerned customs officers. In that case when the warehousing charges were demanded, the Honble Judges rejected the petition of the said petitioners questioning the demand. ( 33 ) WE have our serious reservations about the correctness of the views taken by the Honble judge of the Gujarat High Court. But we refrain from asking any other observation except saying that the facts of that case are not on all fours with the facts of this case before us. ( 34 ) THE net result of the above discussion comes to this. That the petition succeeds and is allowed. The demand notice (Annexure-17 to the writ Petition) dated 22-5-1990 is quashed. As the goods have already been delivered to the petitioners under the orders of this Court on furnishing bank guarantee, there is no necessity to pass any order on prayer No. 2 to the writ petition. The Bank guarantee shall continue to operate till disposal of the case. The matter is remanded to the Assistant Collector, Customs, respondent No. 2 to decide the questions involve in this case afresh in the light of the observations contained in the body of the judgment. The learned Asstt. Collector shall first pass an order on the application under Section 49 dated 3-1-1988 (Annexure-9 to the petition ). Thereafter he shall decide other matters involved in this case. ( 35 ) A copy of this judgment shall be produced before the Asstt. Collector, Customs, within a period of one month from today. He shall give adequate and reasonable opportunity of hearing to the parties, including right to file evidence. Thereafter he shall proceed to decide the matter afresh in accordance with law and in the light of the directions contained in the body of the judgment preferably within a period of four months thereafter. Costs easy. He shall give adequate and reasonable opportunity of hearing to the parties, including right to file evidence. Thereafter he shall proceed to decide the matter afresh in accordance with law and in the light of the directions contained in the body of the judgment preferably within a period of four months thereafter. Costs easy. S. R. Singh, J. ( 36 ) I am in respectful agreement with my esteemed brother Tripathi that the matter needs "a threadbare examination" at the hands of the concerned Assistant Collector of Customs vis-a-vis the question whether the petitioner is liable to pay to the warehouse keeper the rent and warehouse charges under Section 63 of the Customs Act, 1962 in short the Act I would like to add a few words with a view to supplementing the reasons given by brother Tripathi in support of the order remitting the matter back to the Assistant Collector of Customs to decide the questions involved in this case afresh. ( 37 ) IT is admitted, vide paragraph 18 of the writ petition, that on 13-10-1987 the petitioner requested the Assistant Collector of Customs Group-4, New Customs House, Bombay that the goods may be bonded for the time being in the bonded warehouse" and on 14-10-1987 the assistant Collector of Customs ordered that no exbonding should be allowed unless no objection is obtained from group A. C. " In paragraph 4 of the writ petition it is admitted that the goods were warehoused by the Assistant Collector, Central Excise and Customs, Ghaziabad at Mohan nagar Warehouse and letter No. C. W. /s. B. D.-10/87-88/452, dated 20th August, 1987 addressed to Superintendent of Customs by warehouse Manager indicates that the petitioner had desired to store the goods in warehouse in question. The Superintendent of Customs was accordingly requested to permit the clearance from the port in the latters control and supervision. The deposit of the goods in the warehouse is not only established on the basis of the material on record but it was fairly admitted to during the course of argument by Shri J. N. Tewari, learned counsel appearing for the petitioner. The deposit of the goods in the warehouse is not only established on the basis of the material on record but it was fairly admitted to during the course of argument by Shri J. N. Tewari, learned counsel appearing for the petitioner. ( 38 ) ON 8-12-1987 the petitioner moved an application before the Assistant Collector, Group- 4, new Custom House, Bombay requesting the latter, "to release the goods on provisional assessment of duty or convert our Bill of Entry into Section 49 which is particularly meant for disputed material and our goods have become quite disputed". But it is alleged, no order was passed on the said application and instead the goods were ordered to be confiscated under section 111 (m) of the Act with an option to the petitioner to pay in lieu of such confiscation a fine of Rs. 10,00,000/- and clear the goods, penalty of Rs. 1,00,000/- was also imposed under section 112 of the Act. The learned counsel further urged that the order of confiscation was no doubt set aside by the Central Excise Gold (Control) Appellate Tribunal and the matter was remitted back for fresh adjudication and ultimately the show cause notice as also the adjudication proceedings were dropped as "there was neither the intent nor the knowledge either for misdeclaration in the description of the goods or for their undervaluation. " But still the petitioner cannot be said to be the owner of the goods during the period the order of confiscation was in force and therefore, it was not liable to pay to the warehouse keeper any rent or warehouse charges for the period it was not the owner of the warehoused goods. Shri Tewari urged that the warehousing of the goods in the warehouse in question was not the warehousing for the purpose of Section 63 instead it was a warehousing within the meaning of Section 49 of the Act. According to the learned counsel for the petitioner. Section 63 of the Act is attracted only where the goods are proved to have been warehoused in the manner indicated in Section 60 of the Act. According to the learned counsel for the petitioner. Section 63 of the Act is attracted only where the goods are proved to have been warehoused in the manner indicated in Section 60 of the Act. ( 39 ) THE submission that the petitioner was not the owner of the goods during the period the confiscation order was in operation and hence not liable Under Section 63 has no merits inasmuch as the appeal before the Central Excise Gold (Control) Appellate Tribunal was only continuation of the original proceeding and the only effect of the order of confiscation was that during the pendency of the appeal, ownership of the petitioner remained in suspended animation and upon confiscation order having been set aside and the adjudication proseedings dropped the continuity of the ownership with regard to the warehoused goods stood restored with unbroken continuity. ( 40 ) BUT the questions that remain to be considered are (i) Whether the goods were permitted to be stored in the warehouse in question due to the reason of the fact that the Assistant Collector of customs was satisfied on the application of the importer, that the goods cannot be cleared within the reasonable time, "as provided in Section 49 or the goods were deposited in the warehouse in question in accordance with Section 60? (ii) Whether the provisions of Section 63 of the Act were attracted? and (iii) What is the effect of non-passing of an order on the application dated 5-12-1987 moved on behalf of the petitioner for converting the Bill of Entry into the one Under section 49 of the Act? It may be observed that under Section 63 of the Act the owner of any warehoused goods i. e. "the goods deposited in a warehouse" is liable to pay to the warehouse keeper the rent and warehouse charges at the rate fixed under any law for the time being in force or where no rate was fixed, at such rate as may be fixed by the Collector of Customs. In the event of failure to pay any rent or warehouse charges within 10 days from the date when they become due, the warehouse keeper may, after notice to the owner of the warehoused goods and with permission of the proper authority, cause to be sold (any transfer of the goods notwithstanding) such sufficient portion of the goods, as the warehouse keeper may select, where, however, the warehousing is the one under Section 49, there would no liability under section 63 of the Act. ( 41 ) THE questions aforestated are mixed questions of law and fact and since on the basis of the material on record this court is not in a position to decide the basic facts necessary for applicability of Sections 49 and 63 of the Act, it would be but proper to remit the matter back to the appropriate authority for deciding the aforesaid questions. It goes without saying that the rights and liabilities of the parties viz. the petitioner on the one hand and the Central warehousing Corporation, Sahibabad, Ghaziabad on the other, would depend on the decision of the aforesaid questions by the appropriate customs authority. In view of the above discussion, I concur with the order passed by brother Tripathi. .