DELHI HIGH COURT

                                        Trishul Impex

                                              Vs.

                                  Union Of India (Delhi)

                                      CM 468 of 1991

                           (M.C. Jain, C.J. & Arun Kumar, J.)

                                         15.02.1991.

                                       JUDGEMENT

M.C. Jain, J.

1. Heard counsel for the parties. This court by order dated November 12, 1990,
allowed the petition and directed respondents 1 to 5 to release the goods without
payment of demurrage charges in favor of the petitioner and also to issue a
Detention Certificate in respect of these goods from February 27, 1988, when
the Bill of Entries were filed until the date of actual clearance.

2. Respondent No. 5 has now filed this C.M. 468/91 in which a declaration is
sought that the liability of any demurrage charges and ground rent charges will
have to be borne by the petitioner. The petitioner's case is that in all 71 cartons
were imported and the Bill of Entries were presented on February 27, 1988 and
thereafter the Customs authorities instituted an inquiry and a show cause notice
was issued on December 15, 1988. Ultimately, however, by order dated March
15, 1990, the Assistant Collector Customs discharged the said show cause
notice. The petitioner's case is that when the show cause notice has been
discharged, the petitioner has no liability for payment of demurrage charges
and/or the ground rent charges. According to it, the Container Corporation of
India is the custodian on behalf of the Customs authorities under Section 45(2)
of the Customs Act and as such after issuance of the Detention Certificate by
the Customs authorities the Inland Container Depot is under an obligation to
release the goods without payment of demurrage charges and ground rent
charges.

3. Counsel for the petitioner referred to two decisions in support of his
contention. One decision is of this Court dated July 28, 1987, in Trans Asia
Carpets v. Union of India,1 . In that case this court had observed that the
Bombay Port Trust as an agent of the Customs authorities was bound by the
judgment of the court whereby the Customs Collector was to waive the
demurrage or the detention charges and it was not open to the Bombay Port
Trust to stress upon any alleged minor error in the detention certificate. It was
observed that the Customs Collector had to obey the order of the court. It was
necessary for the Bombay Port Trust to assist them in ensuring compliance with
the order of the court. The Bombay Port Trust instead of assisting them
questioned their authority and the detention certificate ordered to be issued by
this court. The petitioner submitted that in the present case the Inland Container
Depot is the custodian of the Customs authorities under Section 45 of the
Customs Act and as such bound by any orders passed against the Customs
authorities.

4. The other judgment referred to by the learned counsel for the petitioner is Sri
Tirupathi Plastics v. Assistant Collector of Customs & Others,2 . There, the
goods were in the custody of the Railways. It was observed that as per
notification, Notice No. 21/81 (Customs) dated August 7, 1981, Southern
Railways are the approved custodian under Section 45 of the Customs Act,
1962. Reliance was placed in that case on an earlier decision in Equipment
Sales Corporation v. Assistant Collector of Customs, 3 , wherein it was ruled
that though there were no rules or regulations under which a detention
certificate could be issued by the Department, it was by virtue of the decisions
of the Courts that such detention certificates are being issued by the Customs
and other authorities. It was observed in the course of the order that a
demurrage waiver certificate must necessarily follow in all cases where
detention certificate has been issued. The learned Judge observed that if
correctly understood what the decision lays down is that when the goods are
detained for whatever reason by the Customs authorities and given to the
custody of the approved custodians of such detained goods pending adjudication
of rival claims between the Department and the importer, a detention certificate
or an order detaining the goods must be furnished to the importer so that there is
evidence of detention and the reason therefore. It was further held that if the
Department succeeds in justifying its detention, then the burden of payment of
demurrage will necessarily fall on the importer. If it is otherwise, the
Department must necessarily take on the liability of meeting the demurrage
charges of the approved custodian. To hold otherwise would be unjust to the
person who has met with success in his litigation with the Department.

5. Admittedly, in the present case, the Container Corporation of India through
the Inland Container Depot is the custodian of goods under Section 45 of the
Customs Act. As the Inland Container Depot is the custodian for the Customs
authorities and the detention certificate has been issued by the Customs, then
the Inland Container is bound to release the goods to the importer and with
regard to the demurrage charges and ground rent charges, it is the Customs
Department which is liable to the Container Corporation of India.

6. Counsel for the Container Corporation of India submitted that the Shipping
Corporation of India Ltd, vide its letter dated January 28, 1991, has asked the
Container Corporation not to release the goods although they had issued
delivery order earlier to the importer. The importer shall get the delivery order
revalidated. The demurrage charges prior to the date February 27, 1988, will be
borne by the importer on which date the Bill of Entries were submitted by the
petitioner and after February 27, 1988, till the goods are released, the Customs
Department would be liable for the payment of demurrage charges and ground
rent charges to the Container Corporation.

7. We, therefore, direct the Container Corporation of India/respondent No. 5
Manager, Inland Container Depot to release the goods to the petitioner on
submission of revalidated delivery order and on payment of the demurrage
charges and the ground rent charges for the period prior to February 27, 1988.
The goods would be released within four days from the date of the fulfillment of
the above two conditions by the petitioner. C.M. is disposed of.

Dispose of accordingly.

Cases Referred.

1. CCP No. 97/87

2. 1990 (49) E.L.T. 49 (Kar.) = (1990) 27 ECC 92 (Kar.)

3. 1989(43) E.L.T. 256 (Kar.) = (1990) 25 ECC 145