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2001 DIGILAW 314 (CAL)

KUMAR TRADING CO. LLC v. UNION OF INDIA (UOI)

2001-05-25

KALYAN JYOTI SENGUPTA

body2001
KALYAN JYOTI SENGUPTA, J. ( 1 ) BY this writ petition the petitioner have asked for a Writ of Mandamus directing and/or commanding the respondents to make payment of the containers detention charges in respect of the containers being Nos. CRXU 4638054 and POCU 1197581 and the Port charges in respect thereof for the period on and from 19th August, 1997 until re-export thereof. The fact of the case is not disputed much and is stated hereunder in short. ( 2 ) THE writ petitioners carry on business of import and export in United Arab Emirates. During June, 1997 the writ petitioners shipped two consignments of Ball Bearings for Nepal as its final destination, transiting through India via Calcutta Port. The said Ball Bearings, which were in containers, arrived at the port of Calcutta during the 1st week of July, 1997, and immediately after landing, the consignment was seized by the Customs authorities under Section 110 of the Customs Act, 1962. ( 3 ) THE importer namely M/s. Nitu Enterprises by a letter dated 3rd April, 1998 expressed inability to the Customs authorities to clear the said consignment. So the petitioners approached the Customs authorities, for permission to re-export and/or withdraw back to its origin at their own risk and costs. But the Customs authorities did not take any action, which resulted in substance in refusal to grant order of re-export to its country of origin. ( 4 ) UNDER the circumstances, the petitioners herein on earlier occasion filed a writ petition on or about 10th August, 1998 being W. P. No. 1650 of 1998. Meanwhile, the Customs authorities issued a show cause notice under Section 124 of the Customs Act, 1962 in respect of the said two consignments, making the writ petitioners a party to the said show cause notice, as one of the notices. The challenge of this show cause notice was the subject-matter of the aforesaid writ petition. ( 5 ) THE writ petition was finally heard and disposed of by His Lordship the Hon'ble Mr. Justice Y. R. Meena by judgment and order dated 1st February, 1999. His Lordship was, inter alia, pleased to quash the notice issued by the Customs authorities under Sections 110 and 124 of the Customs Act, 1962, in respect of the subject consignments. Justice Y. R. Meena by judgment and order dated 1st February, 1999. His Lordship was, inter alia, pleased to quash the notice issued by the Customs authorities under Sections 110 and 124 of the Customs Act, 1962, in respect of the subject consignments. ( 6 ) THE respondents, however, unsuccessfully preferred an appeal against the aforesaid judgment and order and the same resulted in dismissal by the judgment and order of Division Bench dated 14th July, 2000. ( 7 ) AFTER the aforesaid order the writ petitioners received a requisition Memo dated 11th September, 2000 whereby they were asked to pay a sum of Rs. 90,00,000/- (Rs. 86,77,256/- being the charges payable to the Port Trust Authorities on account of container detention charges, Port Rent, Export Wharfage Charges and Terminal Charges; and Rs. 3,22,744/- towards transportation charges, loading and unloading charges, clearing and forwarding charges) and the same were to be paid to the Customs House Clearing Agent. ( 8 ) MR. Banerjee, learned Senior Advocate, appearing on behalf of the writ petitioners contends that the Appeal Court has held the aforesaid show cause notice was totally without jurisdiction. Because of arbitrary and illegal action purported to be under Customs Act, the petitioners have been saddled with the liability to pay to the Port Authorities a sum of Rs. 86,77,256/ -. This could have been avoided had the respondent authorities acted in terms of the Circular No. 84/94-Cus. , dated 25th July, 1995 issued by the Government of India, Ministry of Finance (Department of Revenue), Central Board of Excise and Customs, New Delhi. It will appear from the aforesaid Circular that the respondent authorities could have removed the containers from the Port area to Customs Warehouse in terms of provision of Section 49 of the Customs Act, 1962. ( 9 ) HE further contends that from another Circular being No. 83/98-Cus. , dated 5th November, 1998 issued by the Government of India, Ministry of Finance (Department of Revenue), Central Board of Excise and Customs, New Delhi, it will appear that the goods could have been destuffed from the container for release of container to facilitate shipping agent to fulfil their commitment of re-exporting the container within six months of their import. , dated 5th November, 1998 issued by the Government of India, Ministry of Finance (Department of Revenue), Central Board of Excise and Customs, New Delhi, it will appear that the goods could have been destuffed from the container for release of container to facilitate shipping agent to fulfil their commitment of re-exporting the container within six months of their import. ( 10 ) HIS further contention is that in view of non-compliance of the aforesaid directions given by the Board the petitioners have been unnecessarily made to incur the liability of payment of the aforesaid charges. The said Circulars are held to be valid and binding upon the department as it has been held in the decisions. ( 11 ) HE further submits that primary liability to pay detention and other charges to the port authorities is of the petitioners but this burden can be shifted to the person or authority who is responsible for delay in clearance of the goods and the persons are the Customs authorities herein. In this proposition he has drawn my attention to a judgment of this Court. In that case the Customs authorities were directed to pay the port dues. He further draws my attention to the judgment of Supreme Court rendered in case of Padam Kumar Agarwalla v. The Additional Collector of Customs, Calcutta and Ors. reported in AIR 1972 SC 542 . ( 12 ) HE contends that while exercising writ jurisdiction this Court can pass appropriate order of payment of money. It can be resorted to where it is found that the respondents authorities have failed to discharge their duty in due course of taking action in furtherance of the provision of the law and not doing so caused in suffering of loss and damages. As such the respondents authorities should be compelled to compensate the same. For this purpose filing of the Civil Suit is not necessary. On this issue he has drawn my attention to the following decisions of the Apex Court. (i) (Lucknow Development Authority v. M. K. Gupta), (ii) (Northern Plastics v. Collector of Customs and Central Excise), (iii) (Common Cause v. Union of India), and (iv) (Chairman, Railway Board and Ors. v. Chandrima Das ). ( 13 ) HE further contends that protection under Section 155 of the Customs Act, 1962 is not amenable to the Officers and/or respondents. (i) (Lucknow Development Authority v. M. K. Gupta), (ii) (Northern Plastics v. Collector of Customs and Central Excise), (iii) (Common Cause v. Union of India), and (iv) (Chairman, Railway Board and Ors. v. Chandrima Das ). ( 13 ) HE further contends that protection under Section 155 of the Customs Act, 1962 is not amenable to the Officers and/or respondents. Since their action has been adjudged to be wholly without jurisdiction, therefore, this action taken by them was not in exercise of their bona fide discharge of duty. Detention and seizures of the goods by the Customs authorities was held to be without jurisdiction. In this connection, he has referred to the decision of this Court. ( 14 ) IN the affidavit-in-opposition the respondents took defence that there is no provision for payment of detention charges for the containers or for the goods as well as the Port rent charges. Under law the show cause notice was issued bona fide. Since the Customs Authorities had reasons to believe that the said goods were imported by the writ petition improperly and liable to be confiscated the aforesaid action was taken. The Customs Authorities cannot be held responsible for payment of detention charges and port rent charges. The Customs authorities have the sovereign right to examine and detain the goods for investigation whether the said goods were imported in India lawfully or not. ( 15 ) AFTER dismissal of the appeal the Assistant Commissioner of Customs, Appraising legal section, Custom House, Calcutta informed the learned Advocate for the writ petitioner by a letter dated 4th September, 2000 that the Commissioner of Customs was pleased to allow re-export of the goods in question. Again pursuant to the order dated 29th September, 2000 passed in the present writ petition the detention certificate for the period from 19th August, 1997 to 4th September, 2000 was issued and made over to the learned Advocate for the writ petitioner on 4th November, 2000. ( 16 ) MR. Roychowdhury, learned Senior Advocate, in his argument has elaborately stated to justify the action of the Customs authorities for confiscation of the goods. However, I have refrained myself from dealing with the same because of the judgment and order passed by the learned Single Judge of this Court followed by affirmation of the Division Bench. ( 16 ) MR. Roychowdhury, learned Senior Advocate, in his argument has elaborately stated to justify the action of the Customs authorities for confiscation of the goods. However, I have refrained myself from dealing with the same because of the judgment and order passed by the learned Single Judge of this Court followed by affirmation of the Division Bench. Such alleged justification is not only redundant exercise but amounts to contumacious act in view of rejection of the same very plea. The relevant portions of the written argument advanced by Mr. Roychowdhury are summarised hereunder. ( 17 ) THE relief claimed in the writ petition is hit by the principle of constructive res judicata as the writ petitioner could have prayed for this relief in the previous writ petition as well as in the appeal but it was not done so. Moreover, Justice Meena by a judgment dated 1st February, 1999 has been pleased to hold that "the petitioner has been cheated by M/s. Nitu Enterprises and has also to pay the port charges for the period for which the goods are lying at Calcutta Port. Further delay in permitting the petitioner to take back those goods to Dubai will made him further liable for port charges as the goods were seized as back as in August, 1997. ( 18 ) THEREFORE, it will appear from the above observation since affirmed by the Appeal Court, that the writ petitioner is supposed to pay all charges. No case has been made out by the writ petitioner that the seizure and detention of the goods were malicious abuse of power of the Customs authorities, mala fide, vexatious and done in bad faith. He contends that the writ petitioners did not ask the respondents for storing of goods in a warehouse specially when the order of detention provided that the permission would be asked for under Section 49 of the Customs Act, 1962. Such power is being frequently used. ( 19 ) HE further contends that action of the respondents by way of detention of the goods cannot be termed to be mala fide. There is no allegation in the writ applications that the act of the Customs authorities is actuated by malice. Such power is being frequently used. ( 19 ) HE further contends that action of the respondents by way of detention of the goods cannot be termed to be mala fide. There is no allegation in the writ applications that the act of the Customs authorities is actuated by malice. In this context he has relied on a passage of the Administrative Law by H. W. R. Wade and C. F. Forsyth, 8th edition which says - "all indications now are that the courts will not award damages against public authorities merely because they have made some order which turns out to be ultra vires, unless there is malice or conscious abuse". ( 20 ) HE has relied on a passage of Halsbury's Laws of England, Vol. I (I), 4th edition (re-issue) page 203 which provides - "however, where there has been no misfeasance, the fact that a public officer or authority makes an ultra vires order or invalidly exercises statutory powers will not of itself found an action for damages". ( 21 ) HE has drawn my attention to a textbook, viz. , Principles of Judicial Review by DC Smith which says as follows: -"a public authority or person holding a public office may be liable for the tort of misfeasance in public officer where : (1) there is an exercise or non-exercise of public power, whether common law, statutory or from some other source; (2) which is either (a) affected by malice towards the plaintiff or (b) the decision maker knows is unlawful; and (3) the plaintiff is in consequence deprived of a benefit or suffers other loss. " ( 22 ) HE contends that act and action of the respondent authorities are protected by Section 155 of the Customs Act, 1962 which can only be decided in suit. So, according to him, the writ petition should be dismissed. ( 23 ) NEXT he contends that the Customs authorities are not liable to pay the demurrage charges. The general liability is of the importer/owner of goods. In this context, Mr. Roychowdhury has relied on the following decisions :- (i) , (ii) , (iii) , and (iv ). So, according to him, the writ petition should be dismissed. ( 23 ) NEXT he contends that the Customs authorities are not liable to pay the demurrage charges. The general liability is of the importer/owner of goods. In this context, Mr. Roychowdhury has relied on the following decisions :- (i) , (ii) , (iii) , and (iv ). ( 24 ) HAVING heard the respective contentions of the learned Counsel in this case I find that because of the abortive action by the respondents for confiscation of the goods brought in Calcutta Port and consequent upon refusal to re-export there has been arising a liability of payment of detention and demurrage charges of the containers wherein the subject materials are stuffed, and the port charges. This Court both by the learned Single Judge as well as by the Division Bench who has affirmed the judgment of the learned Trial Judge found, that the action of the respondent authorities is wholly without jurisdiction and directed the respondents to allow to re-export the same. There would not have been any problem or any dispute subsequently but for the accrual of detention and/or demurrage charges of the containers and the port charges for the period from the date of seizure and detention and till the issuance of the permission for re-export. The amount of the charges is quite staggering and which really calls for attention for payment. Now question is who is liable for such payment. ( 25 ) THE learned Single Judge of this Court almost on an identical facts and circumstances has held in the case of Donald and Macarthy Pvt. Ltd. v. Union of India while relying on the Supreme Court decisions rendered in Padam Kumar Agarwalla v. Additional Collector reported in AIR 1972 S. C. 542, International Airport Authority's case reported in 1995 (2) J. T. 453 and Akbar Badruddin Jiwani's case that although the importer/consignee cannot be absolved of his liability to pay the demurrage and port charges, actual burden of such due should be shifted to the person or authority responsible for the delay in lifting of the goods. ( 26 ) THE Hon'ble Mr. Justice Kabir in the above judgment has elaborately dealt with the aforesaid subject and came to above findings. ( 26 ) THE Hon'ble Mr. Justice Kabir in the above judgment has elaborately dealt with the aforesaid subject and came to above findings. I would not have proceeded further and would have allowed the writ petition relying on the aforesaid judgment, but for the argument advanced by Mr. Roychowdhury pleading protection and/or immunity under Section 155 of the aforesaid Act that was not urged in the above case. ( 27 ) THE principle laid down by various decisions of Supreme Court and High Courts that though the action has been held to be invalid and without jurisdiction but until and unless there is a clear-cut case of misfeasance on part of the respondents the petitioner cannot claim any damages. The decisions and the passage of several texts cited by Mr. Roychowdhury are of no dispute. In this case it is not the case of payment of damages but it is a case of the liability for payment of detention and/or demurrage charges of the containers and the port charges by reason of unsuccessful and invalid action of the respondents. Damage is something what is called sufferings of loss because of deprivation of the goods and/or services and/or enjoyment. In this case damage may occur later on because of the non-user or non-utility of the goods which have been detained unnecessarily. It is a simple logic that a person who is not at fault for any wrongful action being taken by the adversary cannot possibly be saddled with any liability. It is a common sense that the persons for whose fault statutory liability has arisen, is to burden such liability and this has been time and again enunciated by the Apex Court as well as this Court in the aforesaid judgments. I need no reiteration of the above proposition. I am unable to accept Mr. Roychowdhury's contention that because of the finding of Justice Meena the writ petitioner is to pay the port charges. Yes true is the position that it is initial burden of the writ petitioner to pay but such burden is liable to be shifted to the Customs authority. I am unable to accept Mr. Roychowdhury's contention that because of the finding of Justice Meena the writ petitioner is to pay the port charges. Yes true is the position that it is initial burden of the writ petitioner to pay but such burden is liable to be shifted to the Customs authority. ( 28 ) THE plea of constructive res judicata is absolutely misplaced here as at that point of time it was not the question who was liable on account of the detention, for demurrage charges and such cause of action has arisen only after permission to re-export has been granted. The plea of constructive res judicata arises only when there is a cause of action and for which one of such relief could have been claimed or any issue could have been raised but not raised in the proceeding decided previously. In the earlier writ petition there was only issue whether the notice to show cause for confiscation of the goods was lawful or not. It was not the contention that the respondents were liable to pay the demurrage and/or detention charges. Therefore, this plea is unacceptable to this Court. ( 29 ) AS far as the protection under Section 155 of the Customs Act is concerned I am of the view that this protection is not amenable in view of the findings of Justice Meena as well as the Appeal Court. It would be appropriate to reproduce the exact findings of the two Courts. Justice Meena has held amongst other as follows : -". . . It is pertinent to note that A. O. simply has annexed the show cause notice not even single document has been annexed in support of its case, that goods were imported for consumption in India nor they have produced any evidence that there was no contract between M/s. Nitu Enterprises and petitioners nor there is any evidence to show that there is any fraud on the part of the petitioner. "the Appeal Court has held amongst other as follows : -". . . In the scheme of things we fail to understand how could the Customs Authorities on a bare apprehension that the goods may be used for consumption in India can issue such a show cause notice. "the Appeal Court has held amongst other as follows : -". . . In the scheme of things we fail to understand how could the Customs Authorities on a bare apprehension that the goods may be used for consumption in India can issue such a show cause notice. Section 111 (o) cannot be stretched to the extent to include the present situation so as to enable the authorities to issue show cause notice for confiscation of the goods. As mentioned above that the scope of Section 111 (o) is limited that in the event of certain exemption being granted and breach of any of the conditions then alone that will enable the authorities to invoke this provision for confiscation of such goods imported in violation of such condition. The goods do not fall in the category of exempted goods, as no such exemption notification exists. The goods are covered by the Indo-Nepal Transit Treaty. Therefore, we are of the opinion that Section 111 (o) in the present case is not applicable. Since Section 111 (o) is not applicable in the present case there is no question of issuing show cause notice or initiating proceeding under Section 124 as the authorities lack jurisdiction. Normally, issuance of show cause notice is not interfered by the Court but if it could be shown that the exercise of the power by the authority was non-existent or there is total lack of jurisdiction then Court can certainly interfere in such show cause notice. Therefore, at the outset we called upon the learned counsel for the appellant to point out that under which provision of law such show cause notice has been issued by the authorities and they have relied on Section 111 (o) which we have discussed above has no relevance in the present case. Therefore, the issue of the show cause notice under Section 124 for confiscation of the goods and seizure thereof is totally without jurisdiction. " ( 30 ) IT will appear from the aforesaid findings of the Appeal Court that the respondents authorities could not justify by producing any material or even prima facie action for confiscation of the goods. Therefore, the issue of the show cause notice under Section 124 for confiscation of the goods and seizure thereof is totally without jurisdiction. " ( 30 ) IT will appear from the aforesaid findings of the Appeal Court that the respondents authorities could not justify by producing any material or even prima facie action for confiscation of the goods. Now it has to be examined in order to find out the malice on part of the respondents to take such action, whether on the given facts and circumstances of this case such action could have been taken by an officer having a common sense and average intelligence in exercise of his power. An officer of average intelligence can take action under the law when there exists some basis and/or materials not on the basis of apprehension devoid of any material whatsoever. In this case from the judgment of the Appeal Court it is found that the respondent authorities were not sure under what provision of the law the action was taken. The Appeal Court has taken pain of analyzing of the fact that in that case it is not warranted to take such action as under the Indo-Nepal Trade Treaty the Customs authorities were amply protected by the insurance coverage. Furthermore, it will appear by the act and conduct of the petitioner that the goods were not brought for home consumption. The writ petitioner never expressed any intention to keep these goods for home consumption or to put the goods into Indian market rather all the time asked for permission to reexport. So it cannot be said that goods were imported illegally. ( 31 ) THERE cannot be any concrete and direct evidence of malice. Malice can be inferred from event itself, when there is no reason for taking action by the authority under law or the authority takes action without any authority. Besides above in this case I find that in terms of the Board Circulars, dated 25th July, 1995 and 26th July, 1995 the respondent authorities should have removed the goods to customs warehouse in terms of the provision of Section 49 of the Customs Act, 1962 without waiting for the importer's application under the aforesaid section. The Board, Circulars are having statutory force and/or direction and the same are binding upon the respondent authorities as it has been rightly submitted by Mr. The Board, Circulars are having statutory force and/or direction and the same are binding upon the respondent authorities as it has been rightly submitted by Mr. Banerjee on the strength of the decisions of Supreme Court. Had the respondents acted in terms of the aforesaid two Board Circulars this liability of demurrage and detention charges and port charges could have been completely avoided and this inaction is one of such conduct of the respondents which demonstrates their misfeasance. A case of misfeasance is not only founded upon an action in abuse of power of the statutory authority but also an act of forbearance in complete breach of orders and directions having statutory force. In the case of Lucknow Development Authority v. M. K. Gupta while discussing the administrative law of accountability of public authorities held amongst other as follows : -". . . In any case the law has always maintained that the public authorities who are entrusted with statutory function cannot act negligently. Under our Constitution sovereignty vests in the people. Every limb of the constitutional machinery is obliged to be people oriented. No functionary in exercise of statutory power can claim immunity, except to the extent protected by the statute itself. Public authorities acting in violation of constitutional or statutory provisions oppressively are accountable for their behaviour before authorities created under the statute like the commission or the courts entrusted with responsibility of maintaining the rule of law. "it has been further held by the aforesaid judgment that -". . . However, today the issue is not only of award of compensation but who should bear the burnt. The concept of authority and power exercised by public functionaries has many dimensions. It has undergone tremendous change with passage of time and change in socioeconomic outlook. The authority empowered to function under a statute while exercising power discharges public duty. It has to act to subserve general welfare and common good. In discharging this duty honestly and bona fide, loss may accrue to any person. And he may claim compensation which may in circumstances be payable. Public administration involves a vast amount of administrative discretion which shields the action of administrative authority. But where it is found that exercise of discretion was mala fide and the complainant is entitled to compensation for mental and physical harassment then the officer can no more claim to be under protective cover. Public administration involves a vast amount of administrative discretion which shields the action of administrative authority. But where it is found that exercise of discretion was mala fide and the complainant is entitled to compensation for mental and physical harassment then the officer can no more claim to be under protective cover. " ( 32 ) AGAIN in case of Common Cause, a Registered Society v. Union of India the Apex Court held amongst other as follows : -"the Crown in England does not enjoy absolute immunity and may be held vicariously liable for the tortious acts of his officers and servants. The maxim that the "king can do no wrong" on the basis of which Common Law rule that "crown was not answerable for the torts committed by its servants" was generated, has not been applied here in this country. The Government would also be liable for torts committed in exercise of sovereign powers except when the act complained of amounted to an act of State. Traditional sovereign functions were the making of laws, the administration of justice, the maintenance of order, the repression of crime, carrying on of war, the making of treaties of peace and other consequential functions. " In paragraph 85 of judgment rendered in Common Cause case the definition of Tortious liability given by Winfield's has been quoted with approval which is reproduced hereunder :"tortious liability arises from the breach of a duty primarily fixed by the law; such duty is towards persons generally and its breach is redressable by an action for unliquidated damages. " In paragraph 86 of the same judgment it has been observed as follows : -"apart from tort which may be committed by a private individual, the officers of the Government would also be liable in damages for their wrongful acts provided the act does not fall within the purview of "act of the State". So also, the administrative bodies or authorities, which deal in administrative matters and take decisions specially for the implementation of the Government policies, have to act fairly and objectively and may in some cases also be required to follow the principles of natural justice. . . . So also, the administrative bodies or authorities, which deal in administrative matters and take decisions specially for the implementation of the Government policies, have to act fairly and objectively and may in some cases also be required to follow the principles of natural justice. . . . "in paragraph 98 of the said aforesaid judgment it is observed amongst other as follows : -"so far as malice is concerned, while actual malice, if proved, would render the defendant's action both ultra vires and tortuous, it would not be necessary to establish actual malice in every claim for misfeasance in public office. . . . " ( 33 ) WHILE deciding aforesaid the Apex Court relied on two English decisions, viz. , (1985) 3 All ER 585 (CA) and (1995) 2 All ER 1,13 and 14. In this case this action of attempt to confiscate the goods were held to be ultra vires and beyond the provision of law. When the action is not permissible under the law the servants of the State cannot get protection under the same law. So protection under Section 155 of the said Act is not amenable in view of the findings of the Appeal Court that the acts are ultra vires the provision. The protection will be amenable only when action is justified to have been taken under the provision of the Act nor beyond the provision. Moreover the respondent authorities have also failed and/or neglected to keep the goods in warehouse in breach of the said circular which they should have done so. This negligence resulted in loss to the petitioner. The officers in their official capacities, if not personally are liable to make good. ( 34 ) THEREFORE, I am unable to accept the argument of Mr. Roy-chowdhury that officials and the respondents are immuned by the aforesaid sections. ( 35 ) AS far as question of granting relief in this case by writ jurisdiction is concerned I am of the view that this issue is no longer res Integra. It has been held by the aforesaid two decisions of the Apex Court as well as the previous decisions of various Courts and by this Court also that the writ court in its plenary power can grant relief of monetary claim not only in respect of the statutory and non-statutory contractual rights and obligation but in case of tortious action also. The decision of Supreme Court in Common Cause case (supra) as well as in a recent decision of Supreme Court rendered in case of Chairman, Railway Board and Ors. v. Chandrima Das (Mrs) and Ors. after considering all the previous decisions of the Apex Court right from Hans Muller of Nuremberg's case (1999) 6 SCC 754 has held that in a writ jurisdiction the adequate compensation for damages of tortious action is maintainable. ( 36 ) IN the premises as above I am of the view that submission of Mr. Roychowdhury has no merit on the question of alternative remedy and/or maintaining writ petition on tortious action. Accordingly I hold that in the event pursuant to my earlier order the Port Authority has not waived the detention and demurrage charges of the containers and other port charges then the respondent authorities shall pay the detention and demurrage charges of the containers and port charges up to the period of 4th September, 2000 inasmuch the respondents till then did not allow the writ petitioner to reexport goods in terms of the earlier order. However, the detention and demurrage charges for the subsequent period till today is concerned the same are to be paid by the writ petitioners in view of the fact that the writ petitioners could have avoided the charges by making payment. The importer, in this case the writ petitioner, is not absolved from making such payment. Since Customs Authority by the aforesaid letter permitted re-export the respondent authorities cannot be made liable for making such payment of detention and other charges from the date of permission of re-export. ( 37 ) IN the facts and circumstances the writ petition succeeds to the extent as above. The writ petitioner is entitled to costs assessed at 300 gms. to be paid by the respondents.