Dismissed

Vidyut Metallics Ltd.and Anr. v. Board of Trustess of the Port of Mumbai and Ors.

Bombay HC29 Mar 2006WP/1966/1999

Case brief

AI extract

What is this about?

Dismissed a writ petition challenging the imposition of demurrage and wharfage charges. Held that the Port Trust did not fail to exercise discretionary powers under the Major Port Trusts Act as the case did not qualify as a special case. Rejected the plea to shift liability to Customs under Section 155 of the Customs Act.

What did the court decide?

Petition dismissed; no order as to costs; no direction issued to the Customs Authorities or Port Trust.

Vidyut Metallics Ltd.and Anr. Vs Board of… — Pension and Retirement Benefits | Bombay HC (2006)

¶1

 1
 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶2

 ORDINARY ORIGINAL CIVIL JURISDICTION

¶3

 WRIT PETITION NO. 1966 OF 1999

¶4

 Vidyt Metallics Ltd.,

¶5

 & Anr. ... Petitioners.

¶6

vs.

¶7

 Board of Trustees of the

¶8

 Port of Mumbai & Ors. ... Respondents.

¶9

 Mr. Phiroz Palkhiwala a/w Pritesh Rajgor

¶10

 i/by Doijode & Asso.

¶11

 for Petitioners.

¶12

 Mr. U.J. Makhija i/by Mulla & Mulla

¶13

 for R. Nos. 1 & 2.

¶14

 Ms. S.V. Bharucha for R. Nos. 3 & 4.

¶15

 CORAM : S.U.KAMDAR, J.

¶16

 DATE : 29th March, 2006.

¶17

 ORAL JUDGMENT :

¶18

 . By the present writ petition the petitioners
 are challenging the orders dated 17.12.1998 and
 29.12.1998 and demand made by the 1st respondent
 dated 8.1.1999 as illegal and null and void. It is
 further prayed that the claim of demurrage and
 wharfage charges of Rs. 17,16,648/- with interest
 at the rate of 18% per annum be declared is illegal

¶19

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 and unlawful. Alternatively, by prayer (d) it has
 been prayed that in the event of the Court coming to
 the conclusion that the petitioners are liable to
 pay the said demurrage charges to the 1st respondent
 then the Court should direct the 3rd respondent to
 make the aforesaid payment. The 3rd respondent is
 the Collector of Customs. Some of the material

¶21

 facts of the present case, briefly stated, are as
 under :-

¶22

 2. The 1st petitioner is a company inter alia
 engaged in export of various products. The
 petitioners manufacture Shaving Razor Blades, Twin
 Track Shaving Systems and machineries used for
 manufacturing the same. On 26.3.1996, the
 petitioners decided to export the consignment of
 seven wooden cases containing High Speed Twin Track
 Assembly Machine against Shipping Bill No. 735680
 dated 22.3.1996. On 27.3.1996, the Special
 Investigation Intelligence Branch of the Customs
 Authorities detained the said consignment on the
 allegation that the value declared by the
 petitioners was excessive and thus there was an over
 valuation of the consignment. On 2.4.1996 the
 valuation was carried out of the said machine. On
 4.5.1996, the petitioners requested for release of
 the consignment for the purpose of export thereof.
 However, only on 1.7.1996 the Chief Commissioner of
 Customs permitted a provisional release of the said

¶23

 3
 consignment on petitioners providing a bond for the
 full value declared and bank guarantee in the sum of

¶24

 Rs. 10 lacs. On 24.8.1996, the petitioners
 complied with the said demand of the Customs
 Authorities and effected provisional release and
 exported the said consignment. In the meantime, the
 1st respondent demanded towards wharfage and
 demurrage an amount of Rs. 19,85,520/- for the
 period from 27.3.1996 to 20.8.1996. On 11.1.1997,
 the petitioners requested the Customs Authorities to
 issue detention certificate for detaining the said
 consignment for ITC formalities. Since the Customs
 authorities failed to issue the detention
 certificate, the petitioners filed a writ petition
 in this Court being Writ Petition No. 582 of 1997.
 On 11.2.1997, the respondent no. 1 passed an order
 inter alia holding that the petitioners are liable
 to make payment of the demurrage and wharfage
 charges. The said order was passed on the
 application of the petitioners for remission in
 demurrage charges under section 53 of the Major Port
 Trusts Act, 1963. The petitioners thereafter
 applied for review of the said order dated 11.1.1997
 passed by the respondent no. 1 but the same was
 rejected by an order dated 25.3.1997. On 2.5.1997,
 the writ petition of the petitioners being Writ
 Petition No. 582 of 1997 came up for hearing before
 the Division Bench of this Court and by an order of
 the same date the Customs Authorities were directed

¶25

¶26

 to complete the hearing on a show cause notice
 issued within a period of one month. It was further
 made clear that if finally it is adjudicated that
 the petitioners were entitled to export the
 consignment, the 4th respondent will issue necessary
 detention certificate in favour of the petitioners
 herein. It is further directed that if necessary
 detention certificate is issued by the 4th
 respondent then the respondent no. 1 will proceed
 to consider the same in accordance with the law and
 grant remission and till that time the Port Trust
 Authority will not take any coercive steps for
 recovery of demurrage charges.

¶27

 3. On 30.5.1997, the Asstt. Commissioner of
 Customs issued a show cause notice under section 124
 of the Customs Act for breach of the provisions of
 the Customs Act for over valuation of the export
 consignment. On 1.7.1997 the Customs Authorities
 imposed a penalty of Rs. 5 lacs each on the 1st
 petitioner and on a director of the 1st petitioner
 under Section 114(1) of the Customs Act. An appeal
 was filed before the Customs, Excise and Gold
 Control Appellate Tribunal and by an order dated
 7.11.1997 the said order passed by the Customs
 authorities was set aside and the appeal preferred
 by the petitioners was allowed. The ground on which
 the said appeal was allowed was that the customs
 authorities had no jurisdiction to impose a penalty

¶28

¶29

 on the ground of over valuation because it was not a
 breach of the Customs Act but it is a breach of the
 provisions of FERA Act. On 16.12.1997, the order
 passed by the Division Bench of this Court in Writ
 Petition no. 582 of 1997 dated 2.5.1997 was
 challenged. By an order dated 3.8.1998, the Supreme
 Court disposed of the said Special Leave Petition by
 recording the statement of the Customs authorities
 that they will issue a detention certificate within

¶30

 four weeks from the said date and if such a
 detention certificate is issued, it will be
 considered by the Port Trust authorities in
 accordance with law. It was further made clear that
 if there is any liability determined by the
 respondent no. 1 to pay the demurrage charges then
 the same will be payable by the petitioners. On
 7.11.1997, the Customs Authorities filed a reference
 application against the order dated 7.11.1997 passed
 by CEGAT and by an order dated 1.9.1998 the said
 reference application filed by the Customs
 Authorities has been dismissed. On 18.9.1998, the
 Customs Authorities issued a certificate to the
 petitioners what is known as detention certificate
 stating therein that the said goods were detained
 for the purpose of bonafide customs formalities.
 However, the said detention certificate was not in a
 proper format and accordingly on 15.10.1998 the
 Customs Authorities issued a fresh detention
 certificate as per the prescribed format and

¶31

¶32

 forwarded the same to the Port Trust Authorities.
 On 20.10.1998 the petitioners thereafter applied to
 the Port Trust Authorities for second review of the
 earlier orders dated 11.1.1997 and 25.3.1997 and
 consider the case of the petitioners in the light of
 the policy formulated by respondent no. 1 in view
 of the issuance of the detention certificate by the
 Customs authorities. The said application for
 second review of both the orders of payment of the
 demurrage charges also came to be rejected by an
 order dated 8.12.1998. The said order of the Port
 Trust was communicated to the petitioners by a
 letter dated 17.12.1998 in which it has been inter
 alia mentioned that the review for grant of
 remission for demurrage charges has been rejected.
 By a letter dated 23.12.1998 the petitioners once
 again approached the Port Trust Authorities inter
 alia stating therein that you please review the
 matter as it seems therefrom that the detention
 certificate issued by the Customs Authorities and
 forwarded to the Port Trust Authorities has not been
 considered. Thereafter by a letter dated 29.12.2998
 the Port Trust authorities informed that in fact the
 decision has been taken at a meeting held on
 8.12.1998 considering all aspects of the matter and
 that the petitioners claim for remission for
 demurrage charges is not found within the
 permissible policy even after issuance of the
 detention certificate and, therefore, the claim is

¶33

¶34

 liable to be rejected. On 31.12.1998 the

¶35

 petitioners requested the 1st respondent to give a
 certified copy of the policy decision. On 8.1.1999,
 the respondent no. 1 sought to enforce the said
 claim of demurrage charges and fresh recovery notice
 was issued. On 2.6.1999 the port Trust Authorities
 filed a contempt petition being Contempt Petition
 No. 54 of 1999 inter alia contending that the
 petitioners had committed a breach of the said order
 dated 2.5.1997. A reply was filed by the Port Trust
 Authorities on 16.7.1999 and after hearing the
 matter on 23.7.1999 the Court has declined to take
 any action and permitted the petitioners to
 challenge the order passed by the Port Trust
 Authorities by filing a writ petition. Accordingly,
 the present writ petition is filed and the
 petitioners are claiming that there is no liability
 to make payment of the demurrage charges to the Port
 Trust Authorities and that the demand of the Port
 Trust Authorities is liable to be rejected.

¶36

 4. The learned counsel for the petitioners in
 support of the aforesaid contention has contended
 before me that the original order of levying penalty
 on the export consignment on the ground of over
 valuation has been successfully challenged and the
 same has been quashed and set aside. It has been
 further contended that thus it is evidenced that the
 detention of the consignment was illegal and the

¶37

¶38

 petitioners are not responsible for the delay in
 exporting the said goods. It has been further
 contended that in fact the authorities have issued a
 detention certificate holding that there is a
 bonafide ITC formalities undertaken and thus the
 said goods were detained. It is further contended
 that once having detained the goods for bonafide ITC
 formalities for the purpose of export, it is not
 permissible for the respondent no. 1 to claim
 demurrage and wharfage charges from the petitioners
 and the Port Trust Authorities are bound to accept
 the detention certificate issued by the Customs
 authorities. It has been further contended that the
 order passed by the BPT is nonest and illegal. It
 has been contended that in that light of the fact
 the respondent authorities ought to have accepted
 the said detention certificate and granted
 permission as per the policy. Alternatively it has
 been contended that even if the case of the
 petitioner does not fit in a policy issued by the
 Government of India and adopted by the Port Trust
 for remission of demurrage charges because as
 contended by the respondent no. 1 it only applies
 to the import of the consignment and not to the
 export of the consignment then also respondent no.
 1 ought to have exercised the power of remission by
 resorting to the main provision of Section 53 of the
 Major Port Trusts Act, 1963 independent to the said
 policy and ought not to have rejected the said claim

¶39

¶40

 merely by holding that the said claim do not fall
 within the four corners of the policy published by
 the Government and adopted by the respondents
 herein. It has been thus contended that there is a
 failure on the part of the respondent no. 1 to
 exercise jurisdiction for granting remission which
 is vested in them under section 53 of the Major Port
 Trusts Act and accordingly the order is liable to be
 quashed and set aside with the direction to the
 respondent no. 1 to consider the case of the
 petitioner. In the facts and circumstances of the
 present case, the petitioners are not liable at all
 to make payment of the demurrage and/or wharfage
 charges. It has been contended by the petitioner
 that the failure to exercise jurisdiction under
 Section 53 of the Major Port Trust Act, 1963 which
 is a main source of power is evident from the fact
 that the rejection of the application for demurrage
 charges is only on the basis that it does not fall
 within the policy decision and they have failed to
 exercise a power independent to the said policy
 decision which is vested in them under section 53 of
 the Major Port Trusts Act, 1963. It has been thus
 contended that the respondents order is liable to be
 quashed and set aside and the case of the
 petitioners is required to be considered for grant
 of remission of demurrage charges afresh under S.
 53 of the said Act.

¶41

¶42

 5. Further, alternatively it has been contended

¶43

 by the petitioners that even if the Port Trust
 Authorities are entitled to reject the claim of
 remission of the demurrage charges of the
 petitioners under the provisions of the Major Port
 Trusts Act then in that event the only authority
 which is responsible for detaining the goods
 illegally and unauthorizedly i.e. respondent nos.
 3 and 4 namely, the Customs authority be held liable
 to pay the necessary demurrage charges and not the
 petitioners herein. It has been contended that the
 liability of the respondent nos. 3 and 4 is
 established because not only the fact that the order
 passed by the respondent nos. 3 and 4 of imposing
 penalty has been quashed and set aside by CEGAT and
 the order of CEGAT has been upheld by this Court but
 after accepting the said order they have also issued
 a detention certificate. Thus, if the detention
 certificate is not accepted by the respondent no. 1
 it is the liability of the respondent nos. 3 and 4
 to pay the said demurrage charges and not the
 petitioners herein.

¶44

 6. In support of the aforesaid contention,the
 learned counsel for the petitioners has placed
 reliance on Section 53 of the Major Port Trusts Act
 which inter alia confers a power of exemption or
 remission of the demurrage charges in special cases
 for reasons to be recorded in writing. The

¶45

 11
 provisions of Section 53 of the Major Port Trusts
 Act, 1963 reads as under :-

¶46

 "53. A Board may, in special cases and for
 reasons to be recorded in writing, exempt
 either wholly or partially any goods or
 vessels or class of goods or vessels from
 the payment of any rate or of any charge
 leviable in respect thereof according to any
 scale in force under this Act or remit the
 whole or any portion of such rate or charge
 so levied."

¶47

 7. The learned counsel for the petitioners has
 thereafter contended that the policy decision taken
 by the Government as evidenced by a circular is only
 a matter of guide-lines and the resolution passed by
 the authorities on the basis of the said circular
 also covers only the part of the cases. It has been
 contended that the said guide-lines and the said
 circulars and the resolution passed as a consequence
 of the said guide-lines is not exhaustive and does
 not cover all categories and cases falling under
 section 53 of the Major Port Trusts Act, 1963. It
 has been thus contended that the authorities are
 bound to consider the case of the petitioners
 independent to the said guide-lines and the said
 resolution and inaction on their part to do so is
 illegal and unlawful. In support of the aforesaid

¶48

 12
 contention, the learned counsel for the petitioners
 has relied upon the judgment of the Apex Court in
 the case of Indian Railway Construction Co. Ltd,.
 vs. Ajay Kumar , reported in (2003) 4 SCC 579. The
 aforesaid judgment is relied upon in favour of the
 contention that whenever there is a failure to
 exercise discretion under the discretionary power
 conferred by the statute then it is permissible for
 the Court to take note of such inaction and give a
 direction to consider the case. In so far as the
 aforesaid proposition of law is concerned, which has
 been propounded by the learned counsel for the
 petitioners, I am of the opinion that it is now well
 settled that the power of judicial review of the
 Court under Article 226 of the Constitution of India
 includes all cases where the orders are passed by
 the authorities or even where the authorities have
 failed to exercise jurisdiction vested in them.
 Thereafter the learned counsel relied upon the
 judgement of the Apex Court in the case of U.P.
 State Road Transport Corporation and Another, vs.
 Mohd. Ismail and others, reported in (1991) 3 SSC
 239, particularly para 13 of the said judgment which
 reads thus :-

¶49

 "13. In the instant case, the Corporation
 has denied itself the discretion to offer an
 alternative job which the regulation
 requires it to exercise in individual cases

¶50

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 of retrenchment. As earlier stated, the

¶52

 Managing Director has issued two circulars;
 (i) dated December 19, 1986 and (ii) dated
 March 12, 1987 directing the Regional
 Managers to dispense with the services of
 the drivers who are found to be medically
 unfit to drive the vehicles. It is directed
 in the circulars that such drivers should be
 paid benefits like retrenchment compensation
 which they are entitled to under the U.P.
 Industrial Disputes Act. The circulars thus
 leave no scope for exercising discretion to
 consider the individual cases of retrenched
 drivers for any alternative job. It may be
 stated that the statutory discretion cannot
 be fettered by self-created rules or policy.
 Although it is open to an authority to which
 discretion has been entrusted to lay down
 the norms or rules to regulate exercise of
 discretion it cannot, however, deny itself
 the discretion which the statute requires it
 to exercise in individual cases. The
 concerned authority of the Corporation
 therefore, notwithstanding the said
 circulars are required to consider the cases
 of retrenched drivers for alternative jobs."

¶53

 Relying upon the aforesaid observations of the Apex
 Court the learned counsel for the petitioners has

¶54

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 contended that the policy which has been formulated
 by the Government and adopted by the resolution of
 the 1st respondent cannot fetter the jurisdiction
 and power vested under the statute under section 53
 of the Major Port Trust Act and, therefore, it was
 the duty of the respondent no. 1 to consider the
 case of the petitioner independent to the said
 policy and the said guide-lines under the statute
 itself. It is therefore contended that having
 failed to do so, it is the duty of the respondent
 no. 1 to consider the same independently and
 therefore necessary directions should be issued to
 the 1st respondent.

¶56

 8. The learned counsel for the petitioner has
 thereafter contended that even if the 1st respondent
 is not bound to accept the detention certificate
 then in that event it is the customs authorities who
 should be directed to make the payment of the
 demurrage and wharfage charges to the Port Trust
 Authorities and not the petitioners herein. He has
 also relied upon the judgment of the Calcutta High
 Court in the case of Donald & Macarthy (P) Ltd., vs.
 Union of India, reported in 1997 (89) E.L.T. 53
 (Cal.). He has also relied upon the judgment of the
 Madras High Court in the case Anuma Precision Tool
 Pvt. Ltd., vs. Collector of Cus. Madras, reported
 in 2000 (121) E.L.T. 309 (Mad.). He has thereafter
 relied upon the judgment of the Division Bench of

¶57

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 the Andhra Pradesh High Court in the case of Sujana
 Steels Ltd,. vs. Commissioner of Customs & C. EX.
 (Appeals), Hyderabad, reported in 2002 (141) E.L.T.
 343. He has thereafter relied upon the judgment of
 the Division Bench of the Delhi High Court in the
 case of Om Petro Chemicals vs. Union of India,
 reported in 2002 (140) E.L.T. 353 (Del.). He has
 thereafter relied upon the judgment of the Division
 Bench of the Delhi High court in the case of Sundeep
 Industries and Another vs. Collector of Customs,
 New Delhi & Ors. reported in 1991 (37) ECR 595
 (Delhi). He has thereafter relied upon the judgment
 of the Calcutta High Court in the case of Surabhi
 Leathers Pvt. Ltd., vs. Collector of Customs,
 reported in 1992 (59) E.L.T. 253.

¶59

 9. The learned counsel for the petitioners
 while relying upon the judgment of the Apex Court in
 the case of Padam Kumar Agarwalla v. The Additional
 Collector of Customs, Calcutta and others, reported
 in AIR 1972 SC 542, particularly para 14 of the said
 judgment which is reproduced hereinunder has
 contended that the principle mentioned therein
 should be accepted in case of demurrage and wharfage
 charges also. Para. 14 of the said judgment reads
 as under :-

¶60

 "14. Now coming to the question of issuing
 a writ of mandamus directing the respondents

¶61

¶62

 or any of them to deliver possession of the
 seized dal, we would have found no
 difficulty in issuing the mandamus asked for
 if the seized goods had been in the
 possession of the customs authorities. But
 admittedly those goods are in the possession
 of the Port Commissioners. In law they have
 a lien over the goods for the rent and other
 charges due to them. Some-one has to pay
 those charges before taking possession of
 the goods. Consequently we cannot issue a
 writ of mandamus to the port Commissioners
 to deliver the goods in question nor can we
 issue a writ to the other respondents to
 deliver possession of those goods as they
 are not in possession of the same. This is
 undoubtedly a hard case. The appellant has
 been unlawfully deprived of the possession
 of his valuable goods because of the illegal

¶63

 action of the customs authorities and
 thereby he could not fulfil the terms of his
 contract with the Cairo firm as a result of
 which he must have suffered considerable
 loss. In addition, he cannot now take
 possession of the goods which were seized
 from him without paying the charges due to
 the Port Commissioners. We were given to
 understand that the charges due to the Port
 Commissioners amount to more than the value

¶64

¶65

 of the goods themselves. It is only fair

¶66

 and just that the customs authorities who
 are responsible for this situation should
 bear the burden; but in this writ petition
 we cannot give any relief in that regard.
 We can only leave the matter to the good
 sense of the customs authorities to take the
 appropriate steps and avoid possible further
 litigation."

¶67

 10. On the other hand, the learned counsel for the
 respondent nos. 1 and 2 has contended that the
 contention of the petitioners that the petitioners
 are entitled to the remission of demurrage charges
 is without any merit. The learned counsel for the
 respondent nos. 1 and 2 has contended that the case
 of the petitioners has been considered both under
 the policy as well as under section 53 of the Major
 Port Trust Act. He has drawn my attention to three
 orders which are passed by the Port Trust
 Authorities. First order was passed on 11.2.1997
 which is Exhibit-1 to the affidavit in reply. This
 order was passed even before the detention
 certificate was issued. At the time of considering
 the said case in the order various reasons are
 given. The first reason given is that the
 petitioners have committed delay in effecting
 delivery of the goods from 1.7.1997 when Customs
 Authorities already passed an order for release of

¶68

¶69

 the goods whereas the petitioners did not export the
 goods right upto 23.8.1997. The second reason given
 by the Port Trust Authority is that since the charge
 of over valuation was made against the petitioners,
 that was the reason for seizure of the goods. These
 reasons do not amount to any special reasons. The
 further reason was mentioned that the export is
 allowed only provisionally. The further reason
 mentioned therein is that delay is not on account of
 the Port Trust Authorities and the last reason given
 is that the remission is admissible only under paras
 1 and 2 of the Government guide-lines and not
 otherwise. The Authorities have also mentioned that
 the port trust authorities are entitled to levy
 demurrage charges immediately after stuffing of
 cargo inside the terminal and therefore also charges
 are liable to be paid by the petitioners. For all
 these reasons the remission application has been
 rejected. It has also been brought to my notice
 that thereafter review application was filed and
 almost for identical reasons the review application
 was also rejected on 25.3.1997. He has further
 submitted that thereafter the petitioners obtained
 detention certificate and called upon the
 authorities to reconsider their case and accordingly
 the respondent authorities were required to
 reconsider the case and thereafter passed another
 order dated 8.12.1998 rejecting the case of the
 petitioners. However, in the order dated 8.12.1998

¶70

¶71

 it is the case of the 1st and the 2nd respondents
 that the claim of the petitioners is considered
 under section 53 of the Major Port Trusts Act as
 well as under the policy and the said claim has been
 rejected. Thus, the learned counsel for the
 respondent nos. 1 and 2 submits that the arguments
 of the learned counsel for the petitioners that
 their case is not considered by the respondents 1
 and 2 de hors the policy and under section 53 of the
 Major Port Trusts Act is not sustainable. The
 learned counsel for the respondent nos. 1 and 2 has
 also brought to my attention the judgment of the
 Apex Court in the case of International Airports
 Authority of India and others vs. Grand Slam
 International and others, reported in (1995) 3 SCC
 151, particularly para 66 of the said judgment. The
 said para 66 of the said judgment reads as under :-

¶72

 "66. From the above decisions of this Court
 it becomes clear that an authority created
 under a statute even if is the custodian of
 the imported goods because of the provisions
 of the Customs Act, 1961, would be entitled
 to charge demurrages for the imported goods
 in its custody and make the importer or
 consignee liable for the same even for
 periods during which he/it was unable to
 clear the goods from the customs area, due
 to fault on the part of the Customs

¶73

 20
 Authorities or of other authorities who
 might have issued detention certificates
 owning such fault."

¶74

 The learned counsel for respondent nos. 1 and 2
 submitted that pursuant to the judgment of the Apex
 Court in the aforesaid case, the question of Port
 Trust not charging the demurrage charges does not
 arise. The learned counsel for the respondent nos.
 1 and 2 has thereafter relied upon the judgment of
 the Apex Court in the case of Shipping Corporation
 of India Ltd., etc., etc., v. C.L. Jain Woolen
 Mills and ors. reported in AIR 2001 SC 1806 as well
 as the judgment of the Apex Court in the case of
 Union of India and others v. M/s. R.C. Fabrics
 (P) Ltd., and another reported in AIR 2002 SC 191
 particularly para 16 thereof and has contended that
 the contention of the petitioners that the
 respondent nos. 1 and 2 must grant remission on
 demurrage charges is baseless and without any
 substance.

¶75

 11. The respondent nos. 3 and 4 who are the
 customs authorities have contended that under the
 provisions of section 155 of the Customs Act the
 action taken by the authorities is bonafide and
 Customs Authorities cannot be held liable for
 individual action of the officer unless it can be
 shown that the action is malafide. It has been thus

¶76

¶77

 contended that the Customs Authority is not liable
 to make payment of any demurrage charges under
 section 155 of the Customs Act, 1963. The learned
 counsel for respondent nos. 3 and 4 has thereafter
 placed reliance on the judgment of the Apex Court in
 the case of international Airports Authority vs.
 Grant Slam International of India, (supra). The
 learned counsel for the respondent nos. 3 and 4 has
 thereafter placed reliance on the judgment of the
 Apex Court in the case of Trustees of Port of Madras
 vs. Nagavedu Lungi & Co. reported in 1995 (8))
 E.L.T. 241 (S.C.) and it has been contended that in
 the light of the judgment in which it has been held
 that the liability to pay demurrage charges and
 other incidental charges by the importer-consignee
 equally applies to the exporter-consigner of the
 goods also and therefore, it is the liability of the
 petitioners. The learned counsel for the respondent
 nos. 3 and 4 has thereafter relied upon the
 judgment of this Court in the case of Modern Rubber
 Industries vs. Union of India reported in 2003
 (154) E.L.T. 571 (Bom.) particularly paras 14, 15
 and 16 thereof which read as under :-

¶78

 "14. Having considered the rival
 submissions, we find much substance in the
 submission advanced by the learned Counsel
 for the Revenue. Under Section 155 of the
 Act, all the actions of the officers of the

¶79

¶80

 Government or Local Authorities for anything
 done, or intended to be done in good faith,
 in pursuance of the Customs Act and Rules or
 Regulations are protected. None of the
 authorities have recorded any finding saying
 that the orders passed by the authorities
 below were mala fide and that they were
 actuated by malice. If none of the orders
 were mala fide and if each of the orders of
 the authorities below can be justified on
 the ground of bona fide action, then, in
 that event we are of the opinion that the
 Customs Department cannot be saddled with
 the warehousing charges.

¶81

 15. It is the case of the Customs
 Authorities that by a letter dated 2nd June,
 1997, they had called upon the petitioner to
 pay the balance penalty amount and the
 redemption fine and clear the goods from the
 warehouse. This contention of the Revenue

¶82

 has not been denied by the petitioner. In
 this view of the matter, it cannot be said
 that the Customs Authorities deliberately or
 with a mala fide intention had declined to
 clear the goods. In the order dated 4th
 September, 1996, the CEGAT had reduced the
 fine and penalty imposed upon the
 petitioner. There was no issue of CVD

¶83

¶84

 before CEGAT. Therefore, if the Customs

¶85

 Authorities had agreed to clear the goods on
 payment of penalty and redemption fine as
 determined by the CEGAT and on payment of
 CVD, it cannot be said that the Customs
 Authorities were declining to clear the
 goods in spite of the order of CEGAT. It
 may be that, ultimately, the Customs
 Authorities accepted the contentions and
 held that the CVD is not leviable on the
 goods imported by the petitioner. That
 itself cannot be a ground for claiming
 warehousing charges from the Customs
 Department.

¶86

 16. The Apex Court in the case of Board of
 Trustees of the Port of Bombay v. I.G.
 Supplying Co. reported in AIR 1977 SC 1622,
 has held that even thought he delay in
 clearing the goods was not due to negligence

¶87

 of the importer for which he could be held
 responsible, yet he cannot avoid the payment
 of demurrage as the rates imposed are under
 the authority of law, the validity of which
 cannot be questioned. The Apex Court has
 reiterated the above proposition of law in
 the later decisions in the case of
 International Airport Authority of India v.
 Grand Slam International, 1995 (77) E.L.T.

¶88

¶89

 753 and in the case of Trustees of Port of
 Madras v. Nagavedu Lungi & Co., 1995 (80)
 E.L.T. 241. In this view of the matter, we
 are of the opinion that the delay in
 clearance of the goods cannot be attributed
 to the Customs Department and the petitioner
 cannot be absolved of their obligation to
 pay the demurrage charges payable on the
 goods imported by the petitioner."

¶90

 12. The learned counsel for the respondent nos.
 3 and 4 has thereafter relied upon an unreported
 judgment of the Division Bench of this Court in the
 case of Writ Petition No. 3553 of 1998 (M/s.
 Santogen Sill Mils Ld., and Anr. vs. Union of
 India and ors) dated 28.4.2005 and another
 unreported judgment of the Division Bench in Writ
 Petition No. 5788 of 1997 (Apollo Paper Mills Ltd.,
 vs. Union of India & Ors.) dated 28.10.2005 and has
 contended that in so far as this Court is concerned,
 the consistent view taken is that the Customs
 authorities cannot be saddled with the liability of
 demurrage and wharfage charges unless it can be
 shown that the customs authorities are not entitled
 to protection under Section 155 of the Customs Act,
 1963.

¶91

 13. Considering the rival submissions advanced
 before me by all the parties, I am of the view that

¶92

¶93

 in so far as the contention of the petitioners is
 concerned that the claim of the petitioners is not
 considered under section 53 of the Major Port Trust
 Act, 1963, the same is required to be rejected. It
 is on record that even before the issuance of the
 detention certificate the case of the petitioners
 was considered and the reasoned order was passed by
 the authority on 11.1.1997 which is at Exhibit-1 to
 the affidavit in reply. In that light of the matter
 the case of the petitioners is considered not only
 from the angle of guide-lines which are issued by
 the Government but also other factors have been
 considered which are set out in the order and the
 authorities have come to the conclusion that the
 case of the petitioners do not fall under any
 special case as required under the provisions of
 Section 53 of the Major Port Trust Act. If the
 power of remission has to be exercised by the
 authorities then it has to be exercised only if the
 case is a special case as contemplated under Section
 53 of the Major Port Trust Act. It is the
 authorities submission that the petitioners case for
 the purpose of over valuation of the consignment and
 consequential setting aside thereof on the ground
 that the Customs Authorities have no jurisdiction to
 pass such an order would not amount to any special
 case under Section 53 of the Major Port Trust Act
 calling upon the Port Trust Authorities to give a
 remission of demurrage charges under section 53 of

¶94

¶95

 the Act. In my opinion that what is a special case
 or not is ultimately a decision of the Port Trust
 Authorities. On the facts narrated in the order, in
 my opinion, no case is made out of any special case
 by the petitioners herein and, therefore, the
 petitioners claim for demurrage charges has been
 rightly rejected. It has been further submitted
 that even thereafter twice the petitioners applied
 for review and on the last occasion when the
 petitioners produced the detention certificate and
 demanded the benefits of the policy guide-lines
 issued on the basis of the ITC formalities and
 detention certificate and that the respondent nos.
 1 and 2 rejected the said claim on the ground that
 the petitioners case do not fall under para 2 of the
 said guide-lines which has been incorporated by way
 of resolution by the respondent nos. 1 and 2 under
 section 53 of the Major Port Trust Act. It has been
 pointed out that the guide-lines provides that
 detention certificate must be for bonafide ITC
 formalities in respect of import of goods. This
 requirement petitioners have failed to establish.
 It has been also pointed out that guide-lines apply
 to import consignment and not to export consignment
 and thus the respondents are entitled to reject the
 claim of the petitioners and the same is accordingly
 validly done. I am of the opinion that in the light
 of the judgment of the Apex Court in the case of
 International Airport Authority (supra) the

¶96

¶97

 respondents are not bound to accept the detention
 certificate issued by the Customs Authorities and
 are entitled to consider the case on its own merits.
 In the present case the case of the petitioners has
 been considered by them on the ground whether the
 petitioners are entitled to the benefits of the
 policy issued by the government and admittedly the
 petitioners case do not fall under the said
 guide-lines issued by the government and the
 petitioners case is also considered independent of
 the said guide-lines as is evidenced from the three
 orders issued by respondent nos. 1 and 2 and thus
 it is not possible to hold that the respondent nos.
 1 and 2 have failed to exercise their jurisdiction
 under section 53 of the Major Port Trust Act, 1963.
 In that light of the matter, it is not possible to
 grant relief to the petitioner that the petitioners
 case should be considered again under section 53 of
 the Major Port Trust Act. The reasons given by the
 respondent nos. 1 and 2 for rejecting the case of
 the petitioners independent of guide-lines that the
 petitioners case do not fall in special cases
 because of the conduct on the part of the
 petitioners which is narrated in the said orders
 including the non-exporting the goods from 1.7.1997
 to 24.8.1997 though the Customs authorities had
 already passed a provisional export order of the
 said goods as well as case of the petitioner being
 of a over valuation of the export consignment though

¶98

¶99

 the said order has been set aside on the ground of
 lack of jurisdiction do not form a case of a special
 case so as to grant remission and in my opinion the
 said reasoning cannot be faulted with.

¶100

 14. The reasons given by the authorities are not
 extraneous or not germane to the issue before the
 authorities nor the said reasons are perverse nor
 any case is made out for the same to be set aside.
 In my opinion, the reasoning of the orders indicate
 that the case of the petitioners do not fall in any
 special case and, therefore, the respondent nos. 1
 and 2 have rightly rejected the claim of the
 petitioners for giving demurrage or wharfage
 charges.

¶101

 15. Now coming to the contention of the
 petitioners that in that event the Customs
 Authorities should be directed to pay the demurrage
 charges. Though the authorities which were cited by
 the petitioners which are of different High Courts
 do indicate that in many cases the Customs
 Authorities can be directed to make payment of the
 demurrage charges. However, in view of the
 judgments of the Division Bench of this Court in the
 case of Modern Rubber Industries Vs. Union of India
 reported in 2003 (154( E.L.T. 571 and in the case
 of Writ Petition No. 3553 of 1998 (M/s. Santogen
 Sill Mils Ld., and Anr. vs. Union of India and

¶102

¶103

 ors) dated 28.4.2005 and another unreported judgment
 of the Division Bench in Writ Petition No. 5788 of
 1997 (Apollo Paper Mills Ltd., vs. Union of India &
 Ors.) dated 28.10.2005 which are binding on me in
 which this Court has taken the view that the Customs
 Authorities are protected by provisions of Section
 155 of the Customs Act I am of the view that it is
 not possible to accept the aforesaid contention of
 the petitioner in the present case. There is no
 case of mala fide pleaded in the petition nor the
 same is argued before me. Thus the provisions of
 Section 155 of the Act will apply with full force.
 Though the view taken by the various Division
 Benches is not in conformity with the view taken by
 this Court, however, in the light of the fact that
 the judgment of the Division Bench of this Court
 which is holding the field is relevant and binding
 upon me, it is not possible for me to accept the
 contention of the petitioners by relying upon the
 various judgments of the various High Courts to
 direct the Customs Authorities to pay demurrage and
 wharfage charges. The reliance placed on the
 judgment of the Apex Court in the case of Padam
 Kumar Agarwalla (supra) is misconceived. In fact
 the judgment makes it very clear that the demurrage
 and wharfage charges are to be paid before taking
 delivery of the goods and in fact the Court has held
 that in a writ petition no such relief can be
 granted and the same is left to the Customs

¶104

¶105

 Authorities for taking appropriate steps or to file

¶106

 further litigation. The judgment is not an

¶107

 authority on the proposition of law that in cases
 where the goods are detained by the authorities and
 such detention having being set aside by the courts
 or tribunal then in every such case the Court should

¶108

 grant a relief of making payment of demurrage

¶109

 charges by the Customs Authorities. In fact the

¶110

 judgment holds that the writ jurisdiction is not an
 appropriate remedy for granting such relief. In the
 light of the aforesaid position of law, it is also
 not equally possible to pass any order directing the
 Customs Authorities to make payment of any demurrage

¶111

 or wharfage charges to the Mumbai Port Trust
 Authorities. Accordingly, the petition must fail.
 Petition is therefore dismissed. However, there

¶112

 shall be no order as to costs.

Vidyut Metallics Ltd.and Anr. v. Board of Trustess of the Port of Mumbai and Ors.

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Vidyut Metallics Ltd.and Anr. v. Board of Trustess of the Port of Mumbai and Ors.

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