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2004 DIGILAW 71 (KER)

Annakutty Joseph v. The Commissioner of Customs

2004-02-19

G.SIVARAJAN

body2004
Judgment :- A Mercedez Benz Car covered by Bill of Entry imported per M.V. Prema Glory V, 220 dated 19.6.2001 manifested in the name of one Sri. E.N. Premraj, Rinziyil House, Palavur, Chavakkad P.O., Thrissur Dist. was detained by the customs authorities on the ground that the petitioner sought to take delivery of the said vehicle. Though the steamer agent sought for amendment of the IGM in favour of the petitioner on 4.10.2001 the same was not allowed and the case was adjudicated by the Commissioner of Customs vide Order No. 12/2002 dated 16.4.2002 wherein the amendment sought for was not allowed. Both the petitioner and the department went in appeal before the Customs, Excise and Gold (Control) Appellate Tribunal (for short ‘CEGAT’), South Zonal Bench, Bangalore and the CEGAT by order dated 22.11.2002 (Ext.P1), referring to a decision in Sun Export Corporation v. Board of Trustees of the Port of Bombay (1997 (96) ELT PG 3), remitted the matter to the Commissioner to examine the issue afresh and to pass an appropriate order in accordance with law after providing an opportunity to the party. Pursuant to the said direction the Commissioner allowed the claim for amendment and intimated the said fact by communication dated 29.7.2003(Ext.P3). 2. The petitioner thereafter submitted application dated 31.10.2003(Ext.P4) to the 1st respondent for issue of detention certificate for the clearance of the imported car. The Deputy Commissioner of Customs, Appraising (Import) in the office of the 1st respondent issued a communication dated 19.11.2003 (Ext.P5) to the petitioner enclosing the detention certificate of the same date (Ext.P6). It is stated both in Ext.P5 and in Ext.P6 that the car could not be cleared by the petitioner so far due to the pendency of the proceedings. The said authority also requested the 2nd respondent to consider the request for waiver of demurrage charges from the petitioner for the period from 4.10.2001 to 29.7.2003. The petitioner thereafter sent a letter to the Deputy Commissioner (Customs) pointing out that the detention certificate issued is only for the period upto 29.7.2003 and that the petitioner is also entitled to the detention certificate for the period from 29.7.2003 till the release of the vehicle. The petitioner thereafter submitted a representation (Ext.P8) to the 3rd respondent requesting for a sympathetic view and to waive the demurrage charges as a special case. 3. The petitioner thereafter submitted a representation (Ext.P8) to the 3rd respondent requesting for a sympathetic view and to waive the demurrage charges as a special case. 3. The petitioner has filed this writ petition seeking for direction to the 1st respondent to issue detention certificate and the waiver of demurrage charges for the release of the petitioner’s Mercedez Benz Car for the period on which it was imported to India till it is cleared by the 2nd respondent. The petitioner also sought for direction to respondents 2 and 3 to release the said vehicle without insisting on payment of demurrage charges in view of Exts. P5 and P6 orders issued by the 1st respondent and direct the 1st respondent to pay the demurrage charges in case it is insisted by the said respondents for the release of the car. 4. A statement is filed on behalf of the 1st respondent. It is explained therein that the vehicle was imported by a vessel arrived at June 2001 at Kochi, that as per the import manifest filed by the steamer agent the importer was one Sri. E.N. Premaraj, Thrissur, that therefore he was the owner of the vehicle and he alone was entitled to celar the vehicle, that subsequently the steamer agent made a request on 4.10.2001 to amend the name of the importer in the manifest as Smt. Annakkutty Joseph instead of Sri. E.N. Premaraj on the ground that Sri. Premaraj failed to fulfil the contract with the seller and the vehicle has been resold to Smt. Annakutty Joseph, that in the meantime, in an investigation conducted by the department, Sri. Premraj deposed in a statement under Section 108 of the Customs Act, 1962 that he had not purchased the car but the car arrived in his name and thus the import appeared to be in contravention of the provisions of the Customs Act, 1962 and the import policy. It is also stated that the Commissioner in terms of Section 122 of the Customs act, 1962 adjudicated the matter, that the vehicle was confiscated under Section 111(d) of the Customs Act, 1962 for violation of the provisions of the said Act and the import policy and the consignee Sri. Premaraj was allowed to re-export the car on a fine of Rs.25, 000/-. Premaraj was allowed to re-export the car on a fine of Rs.25, 000/-. Further proceedings before the CEGAT and before 1st respondent, it is stated, culminated only on 29.7.2003, that though this decision was communicated on 29.7.2003 the bill of entry was filed only on 19.8.2003 by the petitioner, that the order for examination was given on 22-8-2003 and the bill of entry was returned to the custom house agent for producing bill of entry for examination, that the bill of entry was presented by the custom house agent for examination on 11-9-2003 and the vehicle was examined on the same day, that the bill of entry, it is stated was re-submitted for assessment only on 16-9-2003, that since the affidavit required to be submitted as per the policy was not in order, the same was returned to the agency on 19-9-2003 for re-submission with proper affidavit and that it was again resubmitted on 28.10.2003 and the bill of entry was assessed on 30-10-2003 and released for payment of duty on the said date. It is stated that there was no delay after 29-7-2003 on the part of the department but it was only due to the non-submission/delay in production of documents by the Agent. It is also stated that the customs department has no objection in granting waiver of demurrage by the Cochin Port Trust as per the certificate already issued by the Customs. Regarding the prayer for direction the Customs Department to pay demurrage charges it is stated that the department acted only strictly in accordance with the statutory provisions as explained above. 5. I have heard Sri. Ramesh Chander, learned counsel for the petitioner, Smt. T.D. Rajalakshmi, learned Senior Central Government standing counsel for the 1st respondent and Sri. Jayasankar Nambiar, learned counsel appearing for respondents 2 and 3. The counsel for the petitioner submitted that the delay in directing delivery of the car by the customs authorities was not due to any fault of the petitioner, that the delay, if at all, is on the part of the customs authorities in that they had illegally detained the car in spite of the fact that the steamer agent, pointing out the actual situation, had applied for amendment of the IGM immediately after the arrival of the car in Cochin Port. The counsel in the above circumstances submitted that the petitioner is entitled to get a detention certificate covering the entire period from the date of the arrival of the car till its clearance. The counsel also submitted that since the 1st respondent had issued a detention certificate the 2nd and 3rd respondents are bound to honour the same and to waive the demurrage charges in the circumstances stated in the detention certificate. The counsel in support of the above relied on a Division Bench judgment of this Court dated 4.11.1993 in O.P.No. 7393 of 1993, the decision of the Supreme Court in Shipping Corporation of India Ltd. v. C.L. Jain Woolen Mills (2001 (129) ELT 561) and also a decision of the Punjab and Haryana High court in Patiala Castings Private Limited v. Union of India (2003(156) E.L.T. 458) in support of the said contention. The counsel for the 1st respondent on the basis of the averments in the statement filed on behalf of the 1st respondent submitted that the customs department is not liable to pay the demurrage charges to the Cochin Port and that it is the liability of the petitioner to clear the goods after paying the charges to the Cochin Port. The counsel also submitted that if the Cochin Port on the basis of the detention certificate issued by the 1st respondent waives the demurrage charges, the 1st respondent has no objection and that the delay cannot be attributed to the customs department. The counsel also relied on a decision of the Supreme Court in Sun Export Corpn. V. Board of Trustees, Port of Bombay (AIR 1998 SC 92). The counsel for respondents 2 and 3 had also relied on the deicsion of the Supreme Court in Trustees of Port of Madras v. Nagavedu Lungi & Co. (1995(80) E.L.T.241) and in ‘International Airports Authority v. Grandslam international (1995(77) ELT 753) and submitted that even if the 1st respondent has issued a detention certificate the Cochin Port is not bound to waive the demurrage charges. He submitted that unless the petitioner pays the demurrage charges for the period of keeping the car in the wharf respondents 2 and 3 will not be in a position to release the vehicle. The counsel also submits that as to who should pay the demurrage charges is a matter between the petitioner and the customs department. 6. He submitted that unless the petitioner pays the demurrage charges for the period of keeping the car in the wharf respondents 2 and 3 will not be in a position to release the vehicle. The counsel also submits that as to who should pay the demurrage charges is a matter between the petitioner and the customs department. 6. Thus the following questions arise for consideration: (1) Whether there is delay in directing release of the Benz Car imported as per Bill of entry No. 1537 dated 19.8.2003 by the customs authorities as alleged by the petitioner and whether the liability to pay the demurrage charges to Cochin Port can be saddled on the customs department. (2) Whether the delay caused due to the adjudication proceedings in respect of the import of Benz car as per the above mentioned bill of entry can be treated as delay caused by the customs department and on that ground the customs department can be saddled with the liability to pay the demurrage charges to the Cochin Port. (3) Whether the Cochin Port is liable to waive the demurrage charges for keeping the Benz car in the wharf area belonging the Cochin Port on the basis of the detention certificate issued by the customs authorities. 7. Issue Nos.1 and 2 can be taken up together. The undisputed facts are: the vessel carrying the benz car arrived at Kochi in June, 2001; as per the bill of entry and the import manifest filed by the steamer agent the importer was one E.N. Premraj; Trichur which showed that the said Premraj is the owner of the vehicle entitled to clear the vehicle; the petitioner’s name was not there in the import documents, in those circumstances the petitioner was not entitled to get clearance of the vehicle on the basis of the import documents. The steamer agent made a request on 4.10.2001 to amend the name of the importer in the manifest as Smt. Annakutty Joseph, the petitioner herein on the ground that the vehicle has been resold to Smt. Annakutty Joseph. Based on the enquiry conducted by the customs department and the statement obtained from Sri. Premraj the customs department took the view that the import is in contravention of the provisions of the Customs Act 1962 and the import policy. Sri. Based on the enquiry conducted by the customs department and the statement obtained from Sri. Premraj the customs department took the view that the import is in contravention of the provisions of the Customs Act 1962 and the import policy. Sri. Premraj in his statement under Sec. 108 of the Customs Act had clearly stated that he did not purchase the car and that he did not import the car. The matter was adjudicated by the Commissioner of Customs in terms of Sec. 122 of the Customs Act and the vehicle was confiscated under Sec. 111(d) of the said Act. The consignee Sri. Premraj alone was allowed to re-export the car on a fine of Rs.25,000/-. In appeal filed by the petitioner and the department the matter was remitted and the Commissioner subsequently passed an order in favour of the petitioner. Based on the said order, on payment of the customs duty, the vehicle was cleared by the customs authorities. At the request of the petitioner a detention certificate also was issued with a recommendation to the Cochin Port to waive the demurrage. Since the cochin Port was not inclined to release the vehicle without paying the demurrage charges of approximately Rs.14 lakhs this writ petition is filed. 8. On these facts and circumstances can the delay be attributed to the customs authorities? According to me the delay cannot be attributed to the customs authorities. It is an inevitable consequence of the proceedings taken by the customs department bona fide under the provisions of the Customs Act and the import policy. Admittedly the petitioner was not the importer of Mercedez Benz Car and it is only by virtue of the amendment of the IGM the petitioner got title to the imported car. Though the steamer agent sought for amendment of the customs department had entertained a bona fide doubt that the import is in violation of the Customs Act and the import policy. Thus the delay cannot be attributed to the customs department. The delay was caused only in the circumstances mentioned above. Had the parties acted a little more diligently the delay could have been minimized. That is all. 9. The question as to who should bear the liability to demurrage charges for keeping the goods-in this case the car from its import till its delivery is no longer res integra. The delay was caused only in the circumstances mentioned above. Had the parties acted a little more diligently the delay could have been minimized. That is all. 9. The question as to who should bear the liability to demurrage charges for keeping the goods-in this case the car from its import till its delivery is no longer res integra. The Supreme Court in Trustees of Port of Madras v. M/s. Aminchand Pyarelal & Others (1976) 1 SCR 721 was considering the correctness of the judgment of the High Court which held that the Board could not charge demurrage for the period during which the goods had been detained for no fault or negligence of the importer or his agent, demurrage being, in its view, a charge for willful failure to remove goods. The Supreme Court held thus. “Port Trusts were bodies of a public representative character which were entrusted by the legislature with authority to frame a scale of rates and statement of conditions subject to which they would perform certain services. Every scale and every statement of conditions had to be submitted by the Board of the Central Government for sanction and it was only when it was so sanctioned that it had the force of law. The requirement of such sanction was a restraint on unwise, excessive or arbitrary fixation of rates. Sec. 44(2) conferred on the Board the power, in special cases and for reasons to be recorded in writing, to remit the whole or any portion of rates or charges leviable according to any scale in force. Port Trusts did not do the business of warehousing goods and the rates which the Boards charged for storage of goods were not levied as a means of collecting revenue. The Board was under a statutory obligation to render services of various kinds and those services had to be rendered not for the personal benefit of this or that importer but in the larger national interest. Congestion in the ports affected free movement of ships and of essential goods. The scale of rates had therefore to be framed in a manner which would act both as an incentive and as a compulsion for the expeditious removal of goods from the transit area. Congestion in the ports affected free movement of ships and of essential goods. The scale of rates had therefore to be framed in a manner which would act both as an incentive and as a compulsion for the expeditious removal of goods from the transit area. Ships, like wagons, had to be kept moving and that could happen only if there was pressure on the importer to remove goods from the Board’s premises with the utmost expedition. Sec. 42 had not authorised the Board to fix rates of “demurrage” but to frame scales of rates and a statement of conditions under which the services specified therein would be performed. The ordinary meaning of “demurrage” did not, therefore, fetter the Board’s powers under Sec. 42. The High court was, therefore, found to be in error when it held that the Board’s power to charge demurrage was limited to cases where goods were not removed from its premises due to some fault or negligence on the part of the importer”. The Supreme Court again in Board of Trustees of the Port of Bombay v. Indian goods Supplying Co. (1977) 3 SCR 343) held that under its statutes it was the duty of the Board to recover rates. The contention on behalf of the importer that it was in no way responsible for the delay in clearing the goods as the goods had been detained under the Import Trade Control Regulations was not accepted. It was observed that the said decision was on all fours with the facts of the case before it and concluded the question. It was held that the High Court was in error in holding that the importer of the goods could not be held responsible for any delay not attributable to his own default and that demurrage under the statute could never be imposed as long as the goods were detained for the purpose of the operation of the import Trade Control Regulations. A three Judges Bench of the Supreme Court in International Airports Authority of India v. Grandslam International (1995 (77) E.L.T. 753) considered this question. In that case a Division Bench of the Delhi High Court directed the International Airports Authority of India to release the goods imported by the respondents without charging any demurrage thereon for the periods for which detention certificate had been issued by the Collector of Customs. In that case a Division Bench of the Delhi High Court directed the International Airports Authority of India to release the goods imported by the respondents without charging any demurrage thereon for the periods for which detention certificate had been issued by the Collector of Customs. The majority judgment took the view that the decision of the Delhi high Court is contrary to the decision of the Delhi High court itself in M/s. Trishul Impex v. Union of India (1992(58) ELT 182 and of the Supreme Court in Trustees of the Port of Madras v. m/s. Aminchand Pyarelal & Others (1976) 1 SCR 721 and subsequent decisions in Board of Trustees of the Port of Bombay v. Indian Goods Supplying Co. (1977) 3 SCR 343 and in Board of Trustees of the Port of Bombay v. Jai Hind Oil Mills Co. and others (1987 (30) ELT 633. 10. The Supreme Court in Jai Hind Oil Mills Co. & Others (1897 (30) ELT 633) supra held as follows: “The power of a Port Trust to fix rates of demurrage and to recover the same from an importer or exporter (although the question of an exporter paying demurrage arises rarely) under law and to show concession as regards demurrage charges in certain specified cases is recognized by the Court in the Trustees of the Port of Madras v. M/s. Aminchand Pyarelal & Others, (1976) 1 SCR 721 and in the Board of Trustees of the Port of Bombay v. Indian Goods supplying Co. (1977) 3 SCR 343. These decisions are no doubt based on the relevant laws which were in force at the material time. But the decisions are still relevant insofar as cases arising under the Act because the Act also contains provisions more or less similar to the statutory provisions considered in the said decisions. Demurrage charges are levied in order to ensure quick clearance of the cargo from the harbour. They are always fixed in such a way that they would make it unprofitable for importers to use the port premises as a warehouse. It is necessary to do so because congestion in the ports affects the free movement of ships and the loading and unloading operations. As stated earlier, the Port Trust shows concession to the party concerned in certain types of cases. It is necessary to do so because congestion in the ports affects the free movement of ships and the loading and unloading operations. As stated earlier, the Port Trust shows concession to the party concerned in certain types of cases. It is, however, to be observed that before compelling the Customs Authorities to issue a Detention Certificate, the High Court should have issued notice to the Port Trust which was vitally interested in securing its own interests as regards the demurrage charges recoverable by it under law. This was necessary because on the production of the Detention Certificate issued by the Customs, Authorities, the Port Trust was under an obligation to permit the clearance of the goods without payment of full demurrage charges. If ultimately the party concerned is found to be at fault and becomes liable to pay the full demurrage charges the Port Trust may not be in a position to recover such full demurrage charges from the party concerned, since it would have no longer any lien as provided by Sec. 59 of the Act on the goods which are already cleared. The Port Trust being a body corporate constituted under the Act is entitled to be heard by the Court before any order which affects its interests prejudicially is passed. This case serves as an illustration to what is stated above. The Port Trust has been asked to permit the clearance of goods in respect of which demurrage charges of Rs.3,53,514.75 paise are payable in the even of the 1st respondent being held liable in law to pay the full demurrage charges. The orders passed by the High Court in the proceedings to which the Port Trust was not a party which had the effect of prejudicially affecting the interests of the Port Trust would not be binding on it in view of the violation of the principles of natural justice.” Referring to the aforesaid decisions and Jai Hindi Oil Mill’s case supra the supreme Court observed thus: “This Court in the cases aforementioned, therefore, held that the Board of Trustees of, a port was, under the Statue that created it, entitled to charge demurrage even in respect of periods during which the importer was unable to clear goods from its premises for no fault or negligence on his part. It was held that the Boards were entitled to charge demurrage even in respect of periods during which the importer was unable to clear goods because of the detention thereof by the Customs Authorities or the Authorities under the Import Trade Control Regulations, which detentions were thereafter found to be unjustified. This Court also recognised that the Boards were entities in their own right so that the courts could not direct the Customs Authorities to issue a detention certificate without hearing the Board concerned. This was because the issuance of a detention certificate had the effect of reducing the amount of demurrage that the Board would otherwise have charged”. The Supreme Court in Grandslam International’s case supra considered the arguments of the respondents that the aforesaid decisions decided only that an importer had to pay demurrge though the delay in clearing his goods was not due to his default or negligence and that the contention in the present case was different, namely, that the Authority was the custodian of the Customs Authorities and was obliged, by reason of the detention certificates issued by the Customs Authorities, not to charge demurrage for the periods covered by the detention certificates. Regarding this contention it was observed as follows: “The judgments aforementioned do not only hold that an importer is liable to pay demurrage though he is not responsible for the delay in clearing his goods. The judgments deal with detention certificates issued by the Customs Authorities and hold that the importer is liable to pay demurrage at the reduced rate prescribed by the policy framed in that behalf by the Boards even for the period for which a detention certificate has been issued. The judgments recognise that the Boards are entities in their own right and that even the courts cannot compel the Customs authorities to issue detention certificates without first hearing the Board concerned, because detention certificates have the effect of reducing the revenues of the Boards. The Boards and the Authority being similarly placed, the judgments determine the questions raised in these appeals”. Ultimately it was held in paragraph 41 of the said judgment as follows: “The purpose of the Customs Act on the one hand and the Major Port Trusts Act and the International Airports Authority Act on the other hand are different. The former deals with the collection of Customs duties on imported goods. Ultimately it was held in paragraph 41 of the said judgment as follows: “The purpose of the Customs Act on the one hand and the Major Port Trusts Act and the International Airports Authority Act on the other hand are different. The former deals with the collection of Customs duties on imported goods. The latter deals with the maintainance of sea-ports and airports, the facilities to be provided thereat and the charges to be recovered therefor. An importer must land the imported goods at a sea-port or airport. He can clear them only after completion of Customs formalities. For this purpose, the seaports and airports are approved and provide storage facilities and Customs officers are accommodated therein to facilitate clearance. For the occupation by the imported goods of space in the sea-port or airport, the Board or the Authority which is its proprietor is entitled to charge the importer. That until Customs clearance, the Board or the Authority may not permit the importer to remove his goods from its premises does not imply that it may not charge the importer for the space his goods have occupied until their clearance”. There is a further observation in paragraph 43 as follows: “The Central Government is empowered by Sec. 35 of the International Airports Authority Act, 1971, and Sec. 111 of the Major Port Trusts Act, 1963, to issue to the Authority and the Boards of Trustees, respectively, directions on questions of policy after giving them an opportunity, as far as practicable, of expressing their views. The Central Government can, if so advised, after giving to the Authority and the Boards of Trustees the opportunity of expressing their views, direct them, under the aforementioned provisions, not to levy demurrage charges for periods covered by detention certificates”. 11. The above decision of the majority was specifically approved by a later 3 Judges Bench of the Supreme Court in Shipping Corporation of India Ltd. v. C.L.Jain Woolen Mills (2001(129) E.L.T. 561) to which I will deal with later. 12. Now I will deal with the decisions relied on by the petitioner. A Division Bench of this Court in the judgment dated 4.11.1993 in O.P. No. 7393 of 1993 was considering the case of an exporter of various goods including sandalwood waste. The goods were covered by export and import policies framed from time to time under the Imports and Exports (Control) Act, 1947. A Division Bench of this Court in the judgment dated 4.11.1993 in O.P. No. 7393 of 1993 was considering the case of an exporter of various goods including sandalwood waste. The goods were covered by export and import policies framed from time to time under the Imports and Exports (Control) Act, 1947. Substantial changes in the import and export policies were made from 1.4.1992 and further changes from 1.4.1993 and different types of prohibitions were introduced in respect of wood products or sandalwood products. The petitioner wanted to export sandal wood waste under various export contracts emanating prior to 1.4.1992 and the petitioner invoked the powers of the statutory authorities under clause 21 of Chapter IV of the Export and Import Policy of the Government of India, which deals with ‘relaxation of Policy/procedure’ conferred on the Director General of Foreign Trade to relieve genuine hardship in cases where the import and export policy formulated at a particular point of time is affecting pre-existing contracts. The petitioner contended that the prohibition in respect of export of sandal wood waste is introduced only with effect from 1.4.1992 and the petitioner had orders of export of sandalwood waste long before 1.4.1992 and that for the purpose of enabling her to export sandalwood waste towards pending contracts, she is entitled to a direction to the Director General of Foreign Trade to exercise his powers of relaxation of policy/procedure under clause 21 of Chapter IV of Export and import policy. The sandalwood waste for the purpose of export was unloaded in the Port Wharf but the customs authorities did not permit the same to be exported in view of the prohibition. The goods remain in the warehouse at the Port and is the subject matter of a claim for demurrage by the Port authorities. The Divisions Bench considered the question as to whether the Director General of Foreign Trade could exercise his discretionary powers under clause 21 of Chapter IV of the Export and import Policy and grant relaxation in respect of items sought to be unloaded in the Port wharf and sought to be exported. The Divisions Bench considered the question as to whether the Director General of Foreign Trade could exercise his discretionary powers under clause 21 of Chapter IV of the Export and import Policy and grant relaxation in respect of items sought to be unloaded in the Port wharf and sought to be exported. It was contended for the Port Trust that so far as the demurrage for the items which was not allowed to be exported by the customs department in spite of the willingness of the exporter to take them back from the wharf is concerned, there is no power to relax the rules in regard to demurrage in cases of export articles while there is such a power in the Port authorities only for import goods. The Division Bench formulated 4 questions of which the question relevant for the purpose of this case is question No. 4 which reads thus: “Whether the Port Trust could recover demurrage for item 2 of Ext.P2 list even though the petitioner agreed on or after 1.4.1992 to take them away from the Wharf? The Division Bench considered the matter in paragraphs 17 and 18 of the judgment as follows: “17. Point No. 4: so far as item 2 of Ext.P2 list is concerned, it is one of the items covered by shipping Bills prior to 1.4.1992 and that bill has, in fact, the stamp of the Customs authority dated 1.4.1992 on it. While other items among items 1 to 10 were not brought to the wharf, item 2 of Ext.p2 alone was brought to the wharf and became the subject matter of objection for export immediately because of the ban for export of wood products that came into force with effect from 1.4.1992. But, then the petitioner admittedly agreed to take item 2 of Ext.P2 away from the Port. The Port authorities did not permit the same because of objections by the Customs Department and item 2 of Ext.P2 list is still lying in the Port and a huge amount has accumulated towards demurrage. Now, the Port authorities say that they have powers of waiver of demurrage in certain situations, but those powers are restricted to cases of import and not cases of export. The Customs Authorities, in our view, have acted unreasonably in not allowing the exporter to take back item 2 of Ext.p2 back outside the Port. Now, the Port authorities say that they have powers of waiver of demurrage in certain situations, but those powers are restricted to cases of import and not cases of export. The Customs Authorities, in our view, have acted unreasonably in not allowing the exporter to take back item 2 of Ext.p2 back outside the Port. If the exporter did not want to export item 2 of Ext.P2 till after its export was cleared by the Director General of Foreign Trade, we do not find any justification whatsoever for the Customs authorities in unreasonably refusing the exporter to take back the goods. The counsel for the Central Governments has not been able to place before us any provision which enables the Customs authorities to compel the exporter to retain goods in the Port which the exporter does not want to immediately export till a decision by the Director General of Foreign Trade is rendered. 18. We are, therefore, of the view that the Port authorities should be directed to recover the demurrage amount payable by the petitioner in respect of item 2 of Ext.P2 list from the Customs authorities and the Customs authorities are hereby directed to pay the same and have item 2 of Ext.P2. list so cleared of its liability for demurrage and get the same released forthwith in favour of the petitioner. Once such clearance is obtained by the customs authorities, the petitioner will remove the goods covered by item 2 of Ext.P2 from the Port. If, after such clearance as above stated, the petitioner fails to remove item 2 of Ext.P2, the petitioner can be held liable for demurrage from the date of clearance for removal. But, upto the date of clearance and the removal in implementation thereof, the Customs authorities shall be liable for the demurrage as stated above. Point No.4 is held accordingly.” 13. Now coming to the facts of the present case. The Circumstances are different. Though it is seen from the order of the Tribunal at Ext.P1 that the petitioner had requested for re-export of the car the same was not allowed. The customs authorities had permitted only Sri. Premraj to re-export the car on payment of a fine of Rs. 25.000/-. Now coming to the facts of the present case. The Circumstances are different. Though it is seen from the order of the Tribunal at Ext.P1 that the petitioner had requested for re-export of the car the same was not allowed. The customs authorities had permitted only Sri. Premraj to re-export the car on payment of a fine of Rs. 25.000/-. On the facts of the case the rejection of the request of the petitioner for re-export of the case cannot be held to be illegal since the importer in the instant case was the person named in the bill of entry, viz., Sri. Premraj and he alone is entitled to request for permission to re-export. Even without such request from Sri. Premraj the customs department permitted Sri. Premraj to re-export the car on payment of the fine of Rs. 25, 000/-. None of the circumstances which weighed with the Divisions Bench for holding the customs department liable for the demurrage are present in this case. Thus the facts of this case are totally different from the facts of the Division Bench case. 14. It must also be noted that the Port authorities, in the special circumstances, were directed to recover the demurrage amount payable by the petitioner from the customs authorities and the customs authorities were directed to pay the same to get the goods released in favour of the petitioner. Thus it is clear that the Division Bench took the view that there is no question of waiving demurrage charges by the Port Trust. 15. The other decisions relied on by the petitioner are the decision of the Supreme Court in Shipping Corpn. of India Ltd. v. C.L. Jain Woolen Mills (2001(129) E.L.T. 561(SC) and the decision of the Punjab and Haryana High Court in Patiala Castings Private Limited v. Union of India (2003 (156) E.L.T. 458 (P & H). The Supreme Court in Shipping Corpn. of India Ltd. supra considered the question on the facts of that case as to whether the importer of the goods can be made liable to pay any demurrage/detention charges? The Supreme Court in Shipping Corpn. of India Ltd. supra considered the question on the facts of that case as to whether the importer of the goods can be made liable to pay any demurrage/detention charges? And also a larger question whether if the customs authorities do not release the goods and initiates proceedings and finally passes order of confiscation but that order is ultimately set aside in appeal and is held by the Court of law that the detention of the goods was illegal, then in such circumstances whether the carrier of the goods who had lien over the goods for non-payment of duty, can enforce the terms and conditions of the contract against the customs authorities, making the said authorities liable to pay the demurrage charges. The Supreme Court after referring to the relationship between the importer and the carrier of the goods in whose favour the bill of lading has been signed, the provisions of Sec. 170 of the Contract Act and the provisions of the Customs act held that “having scrutinized the provisions of the Customs Act, we are unable to find out any provision which can be remotely construed to have conferred power on the customs authorities to prevent the proprietor of the space from levying the demurrage charges and, thereby absolving the importer of the goods from payment of the same. The Supreme Court in that regard, as already noted, agreed with the majority decision of the Supreme Court in International Airports Authority of India v. Grandslam International (1995(77) ELT 753 (SC). The Supreme Court also referred to another decision of that Court in Union of India v. Sanjeev Woolen Mills (1998 (100 E.L.T.323(SC) where the imported goods were synthetic waste (soft quality), though the customs authorities detained the same, being of the opinion that they were prime fibre of higher value and not soft waste. The court thereafter observed as follows: “On account of non-release, the imported goods incurred heavy demurrage charges but the customs authorities themselves gave an undertaking before the High Court that in the event the goods are found to be synthetic waste, then the Revenue itself would bear the entire demurrage and container charges. Further the Chief Commissioner of Customs, later had ordered unconditional release of goods and yet the goods had not been released. Further the Chief Commissioner of Customs, later had ordered unconditional release of goods and yet the goods had not been released. It is under these circumstances and in view of the specific undertaking given by the customs authorities, this Court held that from the date of detention of the goods till the customs authorities intimated the importer, the importer would not be required to pay the demurrage charges. But in that case even subsequent to the orders of the customs authorities on a suit being filed by one of the partners of the importer-firm, an order of injunction was issued and, therefore it was held that for that period, the importer would be liable for paying the demurrage and container charges. The judgment of this Court in Sanjeev Woolen Mills, therefore, was in relation to the peculiar facts and circumstances of the case and the Court had clearly observed that the order in question is meant to do justice to the importer looking to the totality of the circumstances and the conduct of customs authorities”. The court also held that there is no inconsistency between the ratio in Sanjeev Woolen Mills’ case and in Grandslam International’s case supra. The Supreme Court noted in Shipping Corpn. of India Ltd.’s case that in that case the earlier decision of the Delhi High court has become final which entitles the importer to get the goods released without payment of the detention and demurrage charges. The Supreme Court maintained that there is no provisions in the Customs act entitling the customs officer to prohibit the owner of the space, where the imported goods have been stored from levying the demurrage charges, levy of demurrage charges for non-release of the goods is in accordance with the terms and conditions of the contract and as such would be a valid levy. It was further observed that the conclusion of the High Court to the effect that the detention of the goods by the customs authorities was illegal and such illegal detention prevented the importer from releasing the goods, the customs authorities would be bound to bear the demurrage charges in the absence of any provision in the Customs act absolving the customs authorities from that liability. However, the decision of the supreme court turns as follows: “The goods in question, having already been directed to be released, without the payment of the demurrage charges, the importer must have got the goods released. Having regard to the fact situation of the present case, it would be meet and proper for us to direct the Shipping Corporation and Container corporation, if an application is filed by the customs authorities to waive the demurrage charges”. 16. In view of the authoritative pronouncement of the Supreme Court in the case discussed above it is not necessary to deal with the decision of the Punjab and Haryana High court pressed into service by the counsel for the petitioner. In that case the question was as to whether the imported goods were serviceable pipes or scraps or whether they were old and used. Request for release of the goods despite repeated request was not responded. The court ultimately found that the imported goods were metal scraps. The counsel for the party contended thus: “Mr. Sibal points out that on account of the delay in the release of containers by the respondents, the Shipping company had raised a demand for Rs.82 lakhs. On account of long standing business contacts of the petitioner, the matter was settled at Rs.35 lakhs which the petitioner had to pay. This amount has already been deposited by the petitioner. Still further, the counsel points out that the Punjab State Warehousing Corporation has raised a demand for Rs.26 lakhs on account of demurrage. He submits that the respondents cannot punish the petitioner and burden it with this heavy liability for their fault. The burden shoud be borne entirely by the respondents”. The court observed thus: “It is clear that the petitioner has been unduly harassed. If the petitioner had imported goods different from those as described in the import documents, it may have been possible for the respondents to justify the demand for ‘duty’ or even demurrage etc. However, in the present case, it is clear that the goods were scrap. These were not serviceable pipes. Thus, the department itself is responsible for the charges on account of the delay in release of ‘containers’ and demurrage on account of the delay in the release of goods. The petitioner is not responsible in any manner whatsoever. However, in the present case, it is clear that the goods were scrap. These were not serviceable pipes. Thus, the department itself is responsible for the charges on account of the delay in release of ‘containers’ and demurrage on account of the delay in the release of goods. The petitioner is not responsible in any manner whatsoever. Thus, the petitioner shall be entitled to the reimbursement of the amount deposited by it on account of payment of charges in respect of the containers. It shall not be liable to pay any demurrage. It shall be the responsibility of the custom authorities. The first respondent shall determine as to who out of the concerned authorities was responsible”. The facts of the said case is not similar and hence the said decision is of no assistance in the present case. 17. The Supreme Court in Grandslam International’s case supra had specifically held that the Central Government is empowered under the provisions of Sec. 111 of the Major Port Trusts Act, 1963 to issue to the Board of Trustees directions on questions of policy after giving them opportunity of expressing their views, direct them, not to levy demurrage charges for the period covered by detention certificates. 18. From the aforesaid decisions of the Supreme Court the following propositions emerge: (1) The liability to pay demurrage for keeping the goods of the importer in the premises of the Port authorities is on the importer from the date of import till the date of delivery. (2) The Port authorities are entitled to charge demurrage even in respect of periods during which the importer was unable to clear the goods from his premises for no fault or negligence on his part. The Port authorities are also entitled to charge demurrage even in respect of the periods during which the importer was unable to clear the goods because of the detention thereof by the customs authorities or the authorities under the Import Trade Control Regulations which detention was thereafter found to be unjustified. The Port authorities are also entitled to charge demurrage even in respect of the periods during which the importer was unable to clear the goods because of the detention thereof by the customs authorities or the authorities under the Import Trade Control Regulations which detention was thereafter found to be unjustified. (3) The customs authorities cannot be made liable for payment of demurrage to the Port authorities simply for the reason that the delay in taking delivery of the vehicle from the custody of the Port authorities occasioned due to the detention of the vehicle by the customs authorities either due to adjudication proceedings or under the Import Trade Regulations which detention was thereafter found to be unjustified. (4) The Port authorities are not bound to accept the detention certificate and to waive the demurrage. 19. In view of the above the liability to pay the demurrage for the safe custody of the car in the premises of the 2nd respondent during the pendency of the adjudication proceedings cannot be saddled on the customs department. The importer of the car alone is liable to pay the demurrage charges to the 2nd respondent. Notwithstanding the fact that the customs department had issued detention certificate (Ext.P6) respondents 2 and 3 are not bound to honour the same and to waive the demurrage charges due for the period from the date of import till the date of delivery of the car from the said respondents. As such the 2nd and 3rd respondents cannot be directed to waive the demurrage charges due in respect of the car for the period from the date of its import into India till it is cleared. 20. However, it is seen from paragraph 8 of the judgment of the Division Bench of this Court in O.P.No. 7393 of 1993 that the counsel for the Port Trust had stated that there is no power to relax the rules in regard to demurrage in cases of export articles while there is such a power in the Port authorities only for import goods. 21. From the above it would appear that the Cochin Port has got the power to waive or reduce demurrage in respect of imported goods in appropriate cases. In the instant case a Benz Car was imported into India at Cochin Port on 19.6.2001. 21. From the above it would appear that the Cochin Port has got the power to waive or reduce demurrage in respect of imported goods in appropriate cases. In the instant case a Benz Car was imported into India at Cochin Port on 19.6.2001. Due to the adjudication proceedings the delay occurred and now the customs authorities have cleared the goods after receiving customs duty of Rs. 16 lakhs. It is stated that the 2nd and 3rd respondents are demanding a sum of Rs.14 lakhs by way of demurrage. It is a matter for consideration as to whether the benz car now in the custody of respondents 2 and 3 is in a good condition and as to whether it would fetch a reasonable amount so as to meet all the requirements of the customs duty, demurrage etc. 22. Considering all the aforesaid circumstances, having regard to the fact that the 2nd respondent has got the power to either waive or reduce. The demurrage they would do well to consider the request of the petitioner atleast to the extent of giving some reduction in the demurrage. Having regard to the fact that the benz car has been cleared by the customs authorities after receiving the customs duty as early as on 3.11.2003, a decision on the lines mentioned herein above will be taken by the 2nd/3rd respondent on Ext.P8 within a period of 3 weeks from the date of receipt of a copy of this judgment. Writ Petition is disposed of as above.