Union Of India vs Asian Food Industries
2023 Latest Caselaw 1891 Guj

    C/LPA/665/2021                                 CAV JUDGMENT DATED: 24/02/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/LETTERS PATENT APPEAL NO. 665 of 2021

              In R/SPECIAL CIVIL APPLICATION NO. 19287 of 2006


FOR APPROVAL AND SIGNATURE:


HONOURABLE THE CHIEF JUSTICE MS. JUSTICE SONIA GOKANI

and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

==========================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES

2 To be referred to the Reporter or not ?

YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution NO of India or any order made thereunder ?

========================================================== UNION OF INDIA Versus ASIAN FOOD INDUSTRIES ========================================================== Appearance:

MR DEVANG VYAS with KSHITIJ M AMIN(7572) for the Appellant(s) No. 1 for the Respondent(s) No. 4,5 MR HRIDAY BUCH with DARSHAN M VARANDANI(7357) for the

MR ANKIT SHAH(6371) for the Respondent(s) No. 2 MR DHAVAL D VYAS(3225) for the Respondent(s) No. 3 ==========================================================

CORAM:HONOURABLE THE CHIEF JUSTICE MS. JUSTICE SONIA GOKANI and HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

C/LPA/665/2021 CAV JUDGMENT DATED: 24/02/2023

Date : 24/02/2023

CAV JUDGMENT (PER : HONOURABLE THE CHIEF JUSTICE MS. JUSTICE SONIA GOKANI)

1. Aggrieved by the judgment and order dated 24.07.2018

passed by the learned Single Judge in Special Civil Application

No. 19287 of 2006 whereby the learned Single Judge allowed

the matter in favour of the respondents, the appellant begs to

prefer this appeal under Clause 15 of the Letters Patent.

2. The respondent no.1 being the exporter of various kinds

of pulses and cereals and other materials, received export

orders from various overseas importers for import of various

cereals, pulses, tuvar dal, red choli and other items. The

respondent no.1 entered into a contract of 2500 metric tons

approximately. The consideration of entire export is

approximately 15 lakhs of USD out of which the petitioner

received advance of 20%.

2.1. Out of 106 containers, 20 containers have already been

exported from Kandla Port itself. For remaining 84 containers,

the respondent handed over all the containers with the

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shipping agent with all the documents of the Customs

Department on 23.06.2006 and 24.06.2006 and it was

examined by the Customs Department and thereafter only the

Customs Department granted the permission under Section

50 and the order under Section 51 of the Customs Act was

passed.

2.2. The Customs Authority granted permission to ship the

containers on 24.06.2006 but the vessel did not arrive at the

Kandla Port and the containers continue to lie at the port for

the purpose of loading the same in the vessel of respondent

no.4 and 5. The petitioner acting on behalf of the Government

of India, in exercise of powers conferred under Section 5 of

the Foreign Trade (Development and Regulation) Act, 1992

('The Foreign Trade Act' hereinafter) issued notification No.

15 (Re-2006) 2204-09 dated 27.06.2006 whereby amendment

had been made in the Import Export Policy, prohibiting the

export of tuvar dal, whole gram choli by inserting the entry at

sr. no. 44 in Chapter-7 of the Table-B under Schedule-2 of the

Indian Trade Classification (ITC).

2.3. The prohibition of export of certain items for a period of

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six months from the date of issuance of notification dated

27.06.2006 was made with retrospective effect by subsequent

notification bearing no. 19(RE-2006)2004-09 dated

04.07.2006.

2.4. On 28.06.2006, the Superintendent (DP) Customs House,

Kandla sent a letter and a copy of the notification dated

27.06.2006 issued by the Directorate General of Foreign

Trade (DGFT) and requested the respondent no.2 not to allow

the shipment of the goods that had already been passed out of

the charge by the customs and further requested to furnish

the details of such cargo whether stuffed in container or

stored in loose, lying in the port area for want of shipment.

The respondent no.3 issued a letter dated 29.06.2006 to M/s.

Inter Mark Shipping Agencies Private Limited. The

respondent no.4 had requested the respondent no.5 not to

accept loading of export commodity shown as per the list till

further order.

2.5. The respondent no.5 intimated the respondent no. 1 that

though they had plan to load the containers on vessel on

28.06.2006 after obtaining the necessary permission but on

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29.06.2006, the Assistant Traffic Manager (Container) refused

the loading of the said unit and handed over a letter of

29.06.2006 along with the copy of the letter of the Customs

Department quoting the reasons of prohibiting certain items

in pursuance of notification dated 27.06.2006 by the DGFT

and called upon the respondent no.1 that in view of this

prohibition, the containers stuffed by the respondent no.1 are

lying inside the port and are incurring the port storage

charges. It was mentioned that as per the port traffic and line

tariff, the container storage and the container detention

charges would be debited from the date the units have been

handed over to the appellant.

2.6. Vide letter dated 28.06.2006 issued by the

Superintendent (DP) Customs House, Kandla directing the

respondent no.3 not to allow the shipment of goods that had

already been passed out of the charge by the customs in

pursuance of the notification dated 27.06.2006, the request

was made to call for the details of such cargo whether stuffed

in the container or stored in loose or lying in port area for

want of shipment.

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2.7. The respondent no.4 sent a letter to the respondent -

M/s. Inter Mark Shipping Agencies Private Limited requesting

them not to accept loading of export commodities shown as

per the list till further orders in view of the notification. The

respondent no.1 made several representations to various

authorities and contended that the goods which are lying at

Kandla Port does not cover the said notification issued by the

DGFT because before issuance of the said notification, the

goods were passed out of charge by the Customs Authority

under Sections 50 and 51 of the Customs Act and the said

notification cannot be made applicable in the case of the

petitioner especially in view of para-9.12 of the Import Export

Policy.

2.8. It was pointed out that no notification of General

Provision Class Act in view of the judgment of the Apex Court

in the matter of ITC, Bhadrachalam vs. Union of India, can be

permitted. It was submitted that no reply since had been

received from any authority, the respondent no.1 approached

this Court challenging by way of Special Civil Application No.

14626 of 2006, this notification on various grounds and the

Court allowed the petition holding the action of the petitioner

C/LPA/665/2021 CAV JUDGMENT DATED: 24/02/2023

as arbitrary and illegal. The respondent no.1 approached the

respondent no.3 for loading the container in the vessel but the

respondent no.3 served a bill to the respondent nos. 4 and 5

towards rent, demurrage and detention charges and

demanded the said amount from the respondent no.1. The

respondent no.1 requested to respondent nos. 4 and 5 to

break up the charges payable towards the demurrage, ground

rent and detention charges by the respondent nos. 4 and 5 for

containers lying at the port area and individual break of

respondent nos. 4 and 5.

2.9. Aggrieved by the action, the respondent no.1 preferred

the Special Civil Application before this Court. In response to

the notice of rule issued by the Court, the appellant appeared

and by a counter affidavit opposed the reliefs prayed for by

the respondent no.1 on merits. The appellant, in addition to

the counter affidavit, had submitted the chronological

sequence of events. After hearing the submissions made by

learned counsels for both the sides, the learned Single Judge

passed the judgment and order dated 24.07.2018 allowing the

petition and directed the petitioner to pay the demurrages

after examining the details supplied by the petitioner within a

C/LPA/665/2021 CAV JUDGMENT DATED: 24/02/2023

period of eight weeks from the date of receipt of copy of the

order with interest at the rate of 6% per annum from

24.06.2006 till the amount is paid.

2.10. The appellant approached this Court challenging this

judgment and order of 24.07.2018 passed by the learned

Single Judge in Special Civil Application No. 19287 of 2006.

3. It is the say of the appellant that the learned Single

Judge did not appreciate that a company ought to have filed

the suit for recovery of the sum for damages as the factual

data analysis and appreciation of evidence was a must. It is

further the say of the appellant that there is nothing on the

record in terms of documents to conclude and prove the facts

of the petition unless they are tested the procedural level

prescribed under the law for proving it at the time of trial of

the suit. The authority under the guidance of the Union has

power to implement the policy or the rule of import and

export and some benefits or the export cannot be considered

as a fundamental right.

3.1. The appellant has further questioned the decision of the

C/LPA/665/2021 CAV JUDGMENT DATED: 24/02/2023

learned Single Judge by saying that it failed to appreciate that

as per the notification issued by the appellant under the

Foreign Trade Act for framing the policy under the guidance

of Union of India and national importance and the protection

is granted under Section 18 of the Act and therefore, this act

was done in the good faith.

3.2. The company has not come out with the clean hands and

there were no prayers for the compensation or the damages at

the time of Special Civil Application No. 14642 of 2006 while

challenging the notification which put the ban on the export of

the pulses. The same is hit by the connotation waiver and

acquiesces as per one of the guiding principle enunciated in

the decision of the Apex Court in Collector of Customs,

Bombay vs M/s. Krishna Sales (P) Ltd. [AIR 1994 SC 1239].

3.3. It is further the say of the appellant that merely coming

out with or declaring the notification of the Union of India,

would not give any right to the person concerned to claim the

compensation or damages under the writ jurisdiction. The oral

testament of the offices of the department and those of the

petitioner company shall need to be on record with regard to

C/LPA/665/2021 CAV JUDGMENT DATED: 24/02/2023

the communication and the removal of the goods and for

whose mistake and delay in lifting the goods.

3.4. The company cannot be permitted to be 'unjust enrich'

at the cost of public at large and the company has already

exported the pulses and now wants to get benefit of his own

wrong of not lifting the goods or for non-removal of goods

even after the instructions of the Customs Department. The

appellant has further questioned the decision by urging that

the company has not taken any pleading before the High

Court or before the Supreme Court about the compensation or

damages and which is an afterthought for which it ought to

have been relegated to filing of the suit, hence the following

prayer:-

"(A) Your Lordships may be pleased to admit this

Letters Patent Appeal;

(B) Your Lordships may be pleased to quash and set

aside the judgment and order dated 24.07.2016 passed by

the learned Judge in Special Civil Application No. 19287

of 2006;

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(C) Your Lordships may be pleased to grant any

other and further relief/s as may be deemed fit in the

interest of justice."

4. We have heard extensively learned Additional Solicitor

General Mr. Devang Vyas appearing with learned Senior

Standing Counsel Mr. Kshitij Amin for the appellant and

learned advocate Mr. Hriday Buch assisted by learned

advocate Mr. Darshan Varandani for the respondents.

5. As the arguments on the part of both the sides have been

along the line of the original memo of petition and the

affidavit-in-reply as well as the appeal memo, no repetition is

desirable. Both the sides have sought to rely on the hand book

of procedure from 01.09.2004 to 31.03.2009 published by the

Ministry of Commerce and Industry, Department of

Commerce, Government of India and some of the decisions of

this Court and the Apex Court to substantiate their versions.

The one sought to be relied upon by the learned Additional

Solicitor General are as follows:-

(i) International Airport Authority of India and Others vs.

C/LPA/665/2021 CAV JUDGMENT DATED: 24/02/2023

Grand Slam International and Others [(1995) 3 SCC 151]

(ii) Union of India vs. R.C.Fabrics (P) Ltd. and Another [(2002) 1

SCC 718]

(iii) Om Shankar Biyani vs. Board of Trustees, Port of Calcutta

and Others [(2002) 3 SCC 168]

(iv) Shipping Corporation of India Ltd. vs. C.L.Jain Woolen

Mills and Others [(2001) 5 SCC 345]

(v) Mumbai Port Trust vs. Shri Lakshmi Steels and Others

[(2018) 14 SCC 317]

(vi) International Lease Finance Corporation vs. Union of India

and Others [2019 SCC OnLine Del 7782]

6. We could notice, at the outset, that there are certain

undisputed facts which have been noted by the learned Single

Judge which are as follows:-

6.1. The petitioner intended to export the goods of 87

containers from Kandla Port Trust. As per the Customs Act,

there was a requirement to get the clearance certificate for all

87 containers and the petitioner had followed it. This

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clearance certificate had been issued by the Custom Office

under the provision of Sections 50 and 51 of the Customs Act

before 27.06.2006.

6.2. According to the respondent no.1, the shipments were

not available and therefore, the 67 containers could not be

physically exported beyond the territory of India. The Division

Bench of this Court as well as the Apex Court while

considering the action of the respondent authority in not

permitting the petitioner to load the goods and considering

the applicability of the notification dated 27.06.2006 and the

same to be illegal. The respondent no.1 needed to export the

goods and yet, for those of the containers, it had to pay huge

amount to the agencies towards the container charges and

demurrage. The cargo had been called back and the petitioner

had sold in the local market.

6.3. It has not been disputed that out of 106 containers 20

containers had already been exported from Kandla Port. For

remaining 84 containers, the respondent no.1 handed over all

the containers with shipping agent with all the documents of

the Customs Department on 23.06.2006 and 24.06.2006. They

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were examined by the Customs Department and thereafter

only the Customs Department granted permission under

Section 50 and passed and order under Section 51 of the

Customs Act. On 24.06.2006, the Customs Authority do

granted the permission, the vessel did not arrived at Kandla

Port and the containers continued to lie at the port for the

purpose of loading in the vessel of respondent nos. 4 and 5.

6.4. In exercise of the powers conferred under Section 5 of

the Foreign Trade Act, a notification of 27.06.2006 was

passed whereby amendment had been made in the Import

Export Policy prohibiting the export of certain items like tuvar

dal, whole gram choli by inserting the entry at Sr. No. 44 in

Chapter-VII of Table-B under Schedule-II of the ITC. There

was a prohibition of exporting certain items for a period of six

months from the date of issuance of notification on

27.06.2006. There was a retrospective effect given to the

same by a subsequent notification of 04.07.2006. The copy of

this notification was given and issued by the DGFT and

requested the respondent no.3 not to allow the shipment of

the goods that had already been passed out of charge by the

customs and the request was made to furnish the detail of

C/LPA/665/2021 CAV JUDGMENT DATED: 24/02/2023

such cargo lying in the port area for want of shipments.

6.5. The respondent no.5 intimated the respondent no.1 that

though there was a plan to load the containers on vessel after

obtaining necessary permission, but, on 29.06.2006 the

Assistant Traffic Manager (Container) refused loading of the

units and handed over a letter along with a letter to the

Customs Department quoting the reason of prohibiting the

items and called upon the respondent no.1 that in view of

prohibition, the containers stuck by the respondent no.1 were

lying inside the port and were incurring the port storage

charges.

6.6. The Superintendent (DP) Customs House, Kandla on

28.06.2006 had directed the respondent no.3 not to allow the

shipment of goods which had already passed out of charge by

the customs in the pursuance of notification issued by DGFT

on 27.06.2006 and also requested certain details of such

cargo whether stuffed in container or stored in loose, lying in

the port area for want of shipment. The respondent no.4 also

sent a letter to M/s. Inter Mark Shipping Agencies Private

Limited requesting them not to accept the loading of export

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commodities.

6.7. The Court cannot be oblivious of the respondent no.1

having made several representations to various authorities

and contending that the goods which were lying at Kandla

Port would not be covered under the notification issued by the

petitioner because before the issuance of the said notification,

the goods were passed out of charge by the Customs

Authority under Sections 50 and 51 of the Act and this

notification cannot be made applicable in case of the

petitioner especially in view of para-9.12 of the Import Export

Policy. Much emphasis had been laid on the decision of the

Apex Court in the matter of ITC, Bhadrachalam vs. Union of

India and Pankan Agency vs. Union of India, however when

no heed was paid, the Special Civil Application No. 14626 of

2006 had challenged the same.

6.8. After the decision of this Court, the respondent again

approached the respondent no.3 for loading the container in

the vessel, but respondent no.3 served a bill to respondent

nos. 4 and 5 towards rent demurrage and detention charges

and demanded the said amount where the respondent no.1

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requested to the respondent nos. 4 and 5 to break up the

charges payable towards the demurrage, ground rent and

detention charges. The learned Single Judge therefore had

referred to para 15 of the order of the Division Bench in

Special Civil Application No. 14646 of 2006 where the Court

had held that the authority cannot prevent the respondent

no.1 from exporting the consignment which have already been

cleared by the Customs Authorities admittedly on

23/24.06.2006. The authorities had directed to permit the

respondent no.1 to load the cargo lying at Kandla Port area

for export forthwith. The goods had been already cleared

under Section 51 of the Customs Act on 23.06.2006 and

24.06.2006. The petition had been accordingly allowed.

6.9. Noticing the fact that despite the specific direction, the

appellate authority did not permit the petitioner to export the

consignment. The specific request had been made that the

petitioner had been incurring huge expenses towards the

ground of rent, demurrage on account of the attitude of the

officers. The learned Single Judge not only deprecated such

actions, but, also categorically held that the same invites the

serious consequences. It also had quoted the decision of

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Shipping Corporation of India Ltd. vs. C.L.Jain Woolen

Mills and Others [(2001) 5 SCC 345] that when the

confiscation of the goods is illegal, the parties would be

entitled to the demurrage and accordingly has directed the

amount of the demurrage to be paid at the rate of 6% per

annum from 24.06.2006 till the amount is paid.

"7. Before examining the correctness of the rival submissions, one thing is crystal clear that the relationship between the importer and the carrier of goods in whose favour the Bill of lading has been consigned and who has stored the goods in his custody, the relationship is governed by the contract between the parties. Section 170 of the Indian Contract Act engraft the principle of Bailees lien, namely if somebody has received the articles on being delivered to him and is required to store the same until cleared for which he might have borne the expenses, he has a right to detain it until his dues are paid. But it is not necessary in the case in hand to examine the common law principle and the bailees lien inasmuch as the very terms of the contract and the provisions of the Bills of Lading,, unequivocally conferred power on the appellant to retain the goods, until the dues are paid. Such rights accruing in favour of the appellant cannot be nullified by issuance of a certificate of detention by the customs authorities unless for such issuance of detention certificate any provisions of the Customs Act authorises. We had not been shown any provisions of the Customs Act, which would enable the customs authorities to compel the carrier, not to charge demurrage charges, the moment a detention certificate is issued. It may be undoubtedly true that the customs authorities might have bona fide initiated the proceedings for confiscation of the goods which however, ultimately turned out to be

C/LPA/665/2021 CAV JUDGMENT DATED: 24/02/2023

unsuccessful and the Court held the same to be illegal. But that by itself, would not clothe the customs authorities with the power to direct the carrier who continues to retain a lien over the imported goods, so long as his dues are not paid, not to charge any demurrage charges nor the so- called issuance of detention certificate would also prohibit the carrier from raising any demand towards demurrage charges, for the occupation of the imported goods of the space, which the proprietor of the space is entitled to charge from the importer. The importer also will not be entitled to remove his goods from the premises unless customs clearance is given. But that would not mean that demurrage charges could not be levied on importer for the space his goods have occupied, since the contract between the importer and the proprietor of the space is in no way altered because of the orders issued by the customs authorities. The learned Additional Solicitor General, vehemently argued and pressed sub-section 2(b) of Section 45 in support of his contention that the imported goods have to be dealt with in accordance with the permission in writing of the proper officer of the customs department and in exercise of such power when customs authorities initiate adjudication proceeding and ultimately confiscate and levy penalty, when such order is struck down and a detention certificate is issued, the said issuance of detention certificate would come within the expression otherwise dealt with used in Section 45(2)

(b), and therefore, the proprietor of the space would be bound not to charge any demurrage charges. We are unable to accept this contention inasmuch as the expression otherwise dealt with used in Section 45(2)

(b), in the context in which it has been used, cannot be construed to mean, it authorises the customs officer to issue a detention certificate in respect of the imported goods, which would absolve the importer from paying the demurrage charges and which would prevent the proprietor of the space from levying any demurrage charges. Having scrutinized the provisions of the Customs Act, we are unable to find out any provision which can be remotely

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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. In fact the majority decision in Grand Slam Internationals case, 1995(3) SCC 151, clearly comes to the aforesaid conclusion with which we respectfully agree."

7. This challenge when is being examined, the Court needs

to also consider the uncontested facts which have already

emerged even from the appeal memo. The only aspect that

needs to be considered is as to whether the policy decision

which otherwise the authority is entitled to, would save it

from payment of the demurrage charges.

7.1. In case of International Airport Authority of India

and Others vs. Grand Slam International and Others

[(1995) 3 SCC 151], the question was about the demurrage

for the period for which the detention certificate issued for

wrongful detention of the imported goods by Customs

Authorities. There was a public notice issued in 1986 by the

Collector of Customs in purported exercise of power under

Sections 8, 33, 34 and 45 of the Customs Act read with Rules

56, 57, 58 and 59 of the Aircraft Rule, 1920 directing the

approved custodian of imported goods in Kandla Customs

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area i.e. International Airport Authority of India/ Central

Warehousing Corporation to calculate the

warehousing/storage charges by excluding the charge for the

period of detention of the goods at the instance of the customs

as certified by the Assistant Collector of Customs. Per

majority, the notice had been held ultra vires Section 45 of the

Customs Act.

The Court held that custodian does not entitled the

Customs Authority to debar IAAI/CWC from charging

demurrage even for period covered by the detention

certificate. IAAI and CWC being proprietor of the storage

space at the Airport, Custom Public Notice would be effective

only if IAAI or CWC accept the same. Concurring with this

decision, it was held that Custom Authority by issuing such

direction in the public notice did not act within the powers

conferred under the Customs Act, its rules and regulations.

The majority had held that the purpose of the Customs Act on

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 custom duties on imported

goods, the later deals with the maintenance of Seaports and

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Airports, the facility to be provided thereat and the charges to

be recovered therefor. An importer must land the imported

goods at a Seaport or Airport. He can clear them only after

completion of customs formalities. For this purpose, the

Seaport and Airport 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

Seaport or Airport, the Board or the Authority which is its

proprietor is entitled to charge the importer. That until the

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. None of the

provisions of the Customs Act viz. Sections 8, 33, 34 and 45

entitles the Collector of Customs to debar the collection of

demurrage for the storage of imported goods. They do not

entitle him to impose conditions upon the proprietors of ports

or airports before they can be approved as Customs Ports or

Customs Airports. Section 45 does not state that the person in

whose custody the goods imported in a customs area must

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remain and who has been approved by the Collector of

Customs, shall not be entitled to recover charges from the

importer for such period as the Customs Authorities direct.

What is stated in the Customs Public Notice would be

effective against the authority only if it were shown that the

authority had, expressly or impliedly consented to such

arrangement.

That since was not pleaded, the Court held that though it

is true that by reason of unjustified detention of his goods by

the Customs Authorities, the importer is put to loss by having

to pay demurrage charges for the period of such detention.

The Central Government is empowered by Section 35 of the

International Airports Authority Act, 1971 and Section 111 of

the Major Port Trusts Act, 1963 to issue to the Authority and

the Boards of Trustees the directions not to levy demurrage

charges for periods covered by detention certificate, after

giving them an opportunity, as far as practicable, of

expressing their views.

"40. In any event, the provisions of the Customs Act under which the said Customs public notice was issued may be ex- amined. Section 8 empowers the Collector of Customs to approve proper places in any

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Customs port of Customs airport for the unloading and loading of goods and to specify the limits of any Customs area. Section 33 debars the unloading of imported goods at any place other than a place approved under section 8. Section 34 states that imported goods shall not be unloaded from any conveyance except under the supervision of a proper officer. Section 45 reads thus:

"Restrictions on custody and removal of imported goods -

(1) Save as otherwise provided in any law for the time being in force, all imported goods unloaded in a customs area shall remain in the custody of such person as may be approved by the Collector of Customs until they are cleared for home consumption or are warehoused or are transhipped in accordance with the provisions of Chapter VIII.

(2) The person having custody of any imported goods in a customs area whether under the provisions of sub-section (1) or under any law for the tam being in force-

(a) shall keeps a records of such goods and send a copy thereof to the proper officer.

(b) shall not permit such goods to be re- moved form the customs area or otherwise dealt with except under and in accordance with the permission in writing of the proper officer.

41. None of these provisions entitles the Collector of Customs to debar the collections of demurrage for the storage of imported goods. They do not entitle him to impose conditions upon the properties of ports or airports before they can be approved as Customs ports or Customs air- ports. Section 45 provides that all imported goods imported in a Customs area must remain in the custody of the person who has been approved by the Collector of Customs until they are cleared and such person is obliged not to permit them to be removed from the Customs area or

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otherwise dealt with except under and in accordance with the permission of the Customs Officer. Section 45 does not state that such person not be entitled to recover charges from the importer for such period as the Customs authorities direct.

42. The purpose of the Customs Act on the one hand and the Major Port Trusts Act and the International Airports Author- ity Act on the other hand are different. The former deals with the collection of Customs duties on imported goods. The latter deals with the maintenance of seaports 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 sea-ports and airports are approved and provide storage facilities and Customs officers are accommodated therein to facilitate clearance. For the occupation by the 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.

43. What is stated in the quoted clause of the said customs public notice would be effective against the Authority only if it were shown that the Authority had, expressly or impliedly, consented to such arrangement; that is not even pleaded.

44. It can not be gain said that, by reason of unjustified detention of his goods by the Customs authorities, the importer is put to loss by having to pay demurrage charges for the periods of such detention. The Central Government is empowered by section 35 of the International Airports Au- thority Act, 1971, and section III of the Major Port Trusts

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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. -Me 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. C.A. No 4227/92

45. The goods of the first respondent in this appeal were stored, pending their clearance by the Customs authorities, at the Container Freight Station of the appellant, the Central Warehousing Corporation at Patparganj, Delhi. The Central Warehousing Corporation is established under the provisions of the Warehousing Corporations Act, 1962. The provisions of the Warehousing Corporations Act are substantially similar to those of the International Airports Authority Act, 1971, and the Major Port Trusts Act, 1963. What has been said above in regard to the International Airports Authority applies as well to the Central Warehousing Corporation."

7.2. In yet another decision of Union of India vs.

R.C.Fabrics (P) Ltd. and Another [(2002) 1 SCC 718], the

Customs Authorities on examining the goods belonging to the

respondent-importer found the fabric to be excess in length.

On request of the importer for waiver of show-cause notice,

the Assistant Collector passed an order whereby the importer

was allowed the release of the excess goods after payment of

fine as well as personal penalty. The amount was deposited

along with the customs duty on the excess goods. The DRI

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officers detained the consignment on the basis of information

available with them and seized the detained goods.

A writ petition was filed by the importer for the release

of goods. In the meantime, a formal order was passed by the

Assistant Collector on the lines on which the order was

passed. On the request of the Department, the High Court

allowed the matter to be investigated further and directed the

Department to issue a show- cause notice which was done by

the Additional Collector, Customs and ordered confiscation of

the goods but allowed the same to be redeemed on payment

of redemption fine, appropriate duty as well as the penalty

imposed on the Directors and the Company. The High Court

had set aside the order as the Department violated the

principles of natural justice in not waiting for the reply of the

importer. On remand, the Collector discharged the show-

cause notice and dropped the proceedings by holding that in

view of the order of adjudication, there could not be another

adjudication order in respect of the same consignment.

The Government challenged the order of the Tribunal

which upheld the Collector's order. In this background when

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the question arose of the payment of demurrage, container

charges and ground rent to Warehousing Corporation, the

Court held that the goods have not been released but detained

and seized by the DRI officer on the ground of fraudulent deal

for further adjudication held the Corporation was entitled to

recover its charges from the importer for the period from

16.01.1991 till the date of release. The Customs Authorities

were not held liable for the said period.

"16. The High Court has directed that the Custom Department would pay the demurrage, container charges and ground rent to the Corporation from 16th January, 1991. The said direction is contrary to the decision of this Court in International Airport Authority of India and Ors. v. Grand Slam International and Ors. The Corporation is entitled to recover its charges from the importer. Therefore, the direction in the impugned judgment and order that the custom authorities shall pay those charges is set aside. Thus, the appeal filed by the importer (CA No. 7931/95) deserves to be dismissed. In any event, no one has appeared in support of that appeal."

7.3. In case of Om Shankar Biyani vs. Board of Trustees,

Port of Calcutta and Others [(2002) 3 SCC 168], certain

goods were imported by the appellant which were seized by

the Customs Authorities under Section 110 of the Customs

Act. Without impleading the Board of Trustees of the port in a

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writ petition filed by the appellant, the High Court, by an

interim order permitted the appellant to clear the goods on

furnishing bank guarantee for payment of the differential

amount of duty. At the instance of the Customs Authorities,

the High Court modified the said order and directed the goods

to be stored in a bonded warehouse of the Customs

Authorities. The Board did not allow the appellant to remove

the goods to a warehouse without payment of the charges due

to it. The appellant then joined the Board as a party and the

High Court passed an order in the presence of the respondent

Board permitting the appellant to remove the goods to the

bonded warehouse without payment of the port charges. It

also directed the Board not to raise any objection. The time

limit was fixed for completion of the adjudication proceedings

by the Customs Authorities. It was held that as the Board had

exercised its right of lien by opposing the removal of the

goods to the warehouse, it could not claim demurrage charges

beyond a particular date.

In an appeal preferred by the Board, by an interim order

the appellant was permitted to clear the goods on payment of

demurrage and on furnishing a bank guarantee. The appellant

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did not pay the charges nor did it furnish the bank guarantee.

On an application filed by the Board for permission to sell the

goods, the Court held that the Board could decide its course

of action. The appellate court held the Board to be entitled to

recover charges for the entire period the goods had remained

with it. Before the Apex Court, the appellant contended that

the right of lien under Section 59 of the Major Port Trusts Act

is similar to the lien exercised by a bailee under Section 171

of the Indian Contract Act. Having once exercised the lien the

bailee could not charge rent for storage of goods. It further

contended that the Board should have exercised the power of

sale under Section 62 of the Major Port Trusts Act. Having not

so done, it could not be permitted to continue to levy

demurrage. In such circumstances, the Court held thus:

"Statutorily the respondent Board is entitled to claim payment of

all demurrage charges before the goods were cleared. The

appellant never offered to pay the demurrage charges. It sought

to misuse the order of the court and take the goods out of the

custody of the respondent without payment of the respondent's

charges. The respondent was fully justified in refusing to allow

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such clearance. The appellate court was right in concluding that

the respondent was entitled to recover all charges till the date the

goods remained with it." "The proposition that the bailee, who

exercises a lien, is not entitled to charge rent for storage of goods

can never apply to a case where the lien is exercised for non-

payment of rent or storage charges."

"17. Statutorily the 1st Respondent is entitled to claim payment of all demurrage charges before the goods were cleared. The Appellants never offered to pay the demurrage charges. They sought to misuse the Order of the Court and take the goods out of the custody of the 1st Respondent without payment of their charges. The 1st Respondent was fully justified in refusing to allow such clearance. The Appellate Court was right in concluding that the 1st Respondent was entitled to recover all charges till the date the goods remained with it.

18. In our view the proposition that the bailee, who exercises a lien, is not entitled to charge rent for storage of goods can never apply to a case where the lien is exercised for non-payment of rent or storage charges. If such a proposition were to be accepted it would lead to catastrophic results. It is well known that in most cities, particularly port cities like Calcutta and Mumbai, storage space is at a premium. If such a proposition were accepted then all that a person need to do is to make a demand for removal of the goods without offering to pay the storage charges. If the bailee were to refuse to allow clearance and exercise his right of lien, as he is bound to do, the bailor's purpose would be served.

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He would thereafter have rent free storage space. He could then continue to store the goods free of rent. On the other hand, if the bailee were to permit clearance, in almost all cases, his charges would not be subsequently paid and he would have to then pursue the bailor for recovery of his charges. This could never be the law.

19. Faced with this situation, Mr. Nageshwar Rao submits that the 1st Respondent should have exercised their power of sale under Section 62 of the Major Port Trusts Act. He submits that it was the duty of the 1st Respondent to sell off the goods. He submits that the 1st Respondent cannot be permitted to continue to levy demurrage charges when they themselves do not sell off the goods. He submits that after they obtained a stay on 11th May, 1990 the 1st Respondent should have sold off the goods. He submits that the 1st Respondent should not be allowed to claim demurrage charges after 111th May, 1990. We are unable to accept this submission. Till 19th December, 1989 the goods were under a seizure Order. Thus they could not have been sold. Before 19th December, 1989 the Appellant had already obtained Orders dated 27th September, 1989 and 15th December, 1989. These Orders permitted clearance of the goods. Thus the 1st Respondent could not sell the goods. The 1st Respondents were further directed by Order dated 2nd February, 1990 not to raise any objection to the goods being cleared. Even though they obtained an Order of stay of clearance they could not have sold off the goods when the subject matter of clearance of goods was before the Court. Thereafter by Order dated 16th September, 1991 the High Court again permitted clearance of goods. The interim Order dated 16th November, 1991, in the Appeal filed by the 1st Respondents, also permitted clearance on furnishing a Bank Guarantee. At no stage did the Appellant inform the 1st Respondent that they were not going to furnish a Bank Guarantee. Thus the 1st Respondent could not have sold the goods.

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20. Mr. Nageshwar Rao then submits that the 1st Respondent had applied to the Appellate Court for permission to sell the goods. He points out that by Order dated 10th January, 1992 it was held as follows :-

".After hearing the Counsel for the parties, it is not possible for this Court to specify as to what consequential action the Board of Trustees for the Port of Calcutta is entitled to take in view of non-furnishing of the Bank Guarantee by the writ petitioner/respondents. That course of action has to be decided by the appellant itself. However, we direct that the appeal shall appear in the list for hearing on 31.1.1992 at the top of the list subject to part-heard"

21. Mr. Nageshwar Rao submits that now the 1st Respondents could have sold the goods. He submits that it was the duty of the 1st Respondent to have sold the goods so that further demurrage charges are not incurred. Mr. Jaideep Gupta does not deny that such an application was made by the 1st Respondent. He admits that in the Order dated 10th January, 1992 it was held that the 1st Respondent could decide what course of action they should adopt. He submits that as, on 10th January 1992, the Court directed the matter to be listed on 31st January 1992, the 1st Respondent could not have sold the goods.

22. In our view, the 1st Respondent should have sold off the goods at that stage. They are a statutory body. Merely because there is no obligation to sell does not mean that they can allow the goods to lie around. By this time the 1st Respondent well knew that the Appellant was not paying the charges. Now the Court had permitted them to take recourse to such action as was available in law. Sale is contemplated in the Major Port Trusts Act itself. In our view the 1st Respondent should have now sold the goods. Apart from the fact that demurrage

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charges would have stopped running, valuable godown space would also have become available to them. On facts of this case, we feel that it would be just and proper that the 1st Respondent not be allowed to charge demurrage charges after 10th January, 1992."

7.4. In case of Mumbai Port Trust vs. Shri Lakshmi

Steels and Others [(2018) 14 SCC 317], the question was

with regard to the demurrage charges for clearance of Port

Authority/ container detention charges of shipping line. It was

held that the importer was liable even if delay caused due to

customs checking and no negligence or fault of importer

found. The Court held that Customs Authorities not even

being parties to contract cannot be directed to pay demurrage

charges for clearance of goods of importer. In any case, even

if there was some delay on the part of Customs, respondent -

importers were also guilty of delay. Thus, the High Court's

order deviating from the settled position of law and directing

the Customs Authorities to pay container detention charges

that too even prior to importer clearing its goods, on facts and

law, was not held unsustainable and was set aside. On relying

on the 2009 Regulations, as the High Court had given, this

was found to be a misplaced. It was held by the Apex Court to

be a wrong placing of reliance. There was no malafide

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ascribed to the Customs Authority and therefore, the Board's

powers to charge demurrage was erroneously held to be

limited to case of fault of negligence of importer. The Court

held that the importer is liable to pay demurrage charges

even when the Custom Authority has detained the imported

goods which detention might later be found to be unjust.

"13. Two issues arise before us - (1) whether any direction could be given to the Mumbai Port Trust to waive the demurrage charges and (2) whether the liability to pay the demurrage/detention charges in respect of the imported goods could be fastened upon the DRI/Customs Authorities.

14. As far as the first issue is concerned, it would be pertinent to point out that the Mumbai Port Trust is a statutory authority created under the Major Port Trusts Act, 1963 (for short 'the Act'). A Major Port Trust is managed by the Board of Trustees appointed under Section 3 of the Act. The works and services to be provided by the Trust at the Major Ports are set out in Chapter V of the Act. Chapter V-A which was introduced with effect from 09.01.1997 provides for fixation of tariff for Major Port Trusts. The tariff to be charged by the port trust is determined by an independent statutory authority, called the Tariff Authority for Major Ports, under Section 47A of the Act.

23. The issue whether an importer is liable to pay demurrage charges even when the imported goods have been detained by the Customs Authorities and later it is found that the version of the importer is correct, has been the subject matter of a number of decisions. In the case of Trustees of the Port of Madras v. M/s Aminchand Pyarelal1, the Customs Authorities had issued 1 (1976) 3 SCC 167 detention

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certificate of imported goods. There was no fault or negligence on the part of the importer. The Trustees of the Port of Madras waived demurrage charges for the period of detention; the importer paid the balance amount and cleared the goods. Later, the Board wrote to the Customs Authorities that the detention certificate had been wrongly issued. Thereafter, the Board sued the importer for recovery of the balance demurrage charges. It was urged 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. This Court, after noticing the provisions of the Madras Port Trust Act, especially Sections 42, 43 and 43A thereof, which are similar to the provisions of the Major Port Trusts Act, 1963 referred to above, held that the Board was entitled to claim the rates as framed under the provisions of the said Act. This Court held that the Port Trusts were public representative bodies entrusted by the Legislature with authority to frame the scale of rates and the conditions subject to which these rates and services were to be rendered. These rates were approved by the Central Government and, thereafter, the rates had the force of the law. It was held that the Port Trusts were under a statutory obligation to render services of various kinds in the larger public and national interest. In case there is congestion in the port it would affect the free movement of ships and of essential goods. Therefore, the scale of rates had to be framed in such a manner that it worked both as an incentive to the importers to remove the goods as expeditiously as possible from the transit areas and also acted as a disincentive to keep the goods in the premises of the Board for a long time, thereby increasing the demurrage charges substantially with passage of time. This Court held that the High Court was in error in holding that the Board's power to charge demurrage was limited to cases where the goods were not removed from its premises due to some fault or negligence on the part of the importer.

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24. In Board of Trustees of the Port of Bombay v. Indian Goods Supplying Co2, this Court held that it was the duty of the Board to recover rates; the Board had a lien on the goods and the right to seize and detain the goods, until the rates were fully paid and to sell the goods if the rates were not paid and recover the same. It was held that certain concessions may be given taking into account the hardship of the importers, but the legality of the rates cannot be questioned. This Court went on to hold that the 2 (1977) 2 SCC 649 importer of the goods was liable to pay the demurrage charges even if the importer was not responsible for any delay, nor any fault could be attributed to the importer.

25. In Board of Trustees of the Port of Bombay v. Jai Hind Oil Mills Company3, this Court noted that the provisions of the Major Port Trust, 1963 were pari materia to the acts governing the Individual Port Trusts prior thereto. It was held that the demurrage charges are levied in order to ensure quick clearance of the cargo from the harbour and the rates are fixed in such a way that they would make it unprofitable for the importer to use the port premises as a warehouse.

26. In all these cases, this Court took the view that the Board of Trustees of the Ports, which are creations of a statute, are entitled to charge demurrage and other charges from the importer even in respect of those periods during which the importer was unable to clear goods from the premises of the Board, for no fault or negligence on the part of the importer. It was further held that the Boards were entitled to charge demurrage from the importer even when the importer was unable the clear the goods because of the detention thereof by the 3 (1987) 1 SCC 648 Customs authorities, which detention may later on have been found to be unjustified.

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27. The provisions of the International Airport Authority Act, 1971 are similar in nature and these provisions came up for consideration before this Court in International Airports Authority v. Grand Slam International. In that case, this Court took note of Section 45 of the Customs Act and held as follows:

"41. None of these provisions entitles the Collector of Customs to debar the collection of demurrage for the storage of imported goods. They do not entitle him to impose conditions upon the proprietors of ports or airports before they can be approved as Customs ports or Customs airports. Section 45 provides that all imported goods imported in a customs area must remain in the custody of the person who has been approved by the Collector of Customs until they are cleared and such person is obliged not to permit them to be removed from the customs area or otherwise dealt with except under and in accordance with the permission of the Customs Officer. Section 45 does not state that such person shall not be entitled to recover charges from the importer for such period as the Customs Authorities direct.

42. 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 maintenance of seaports and airports, the facilities to be provided thereat and the charges to be recovered therefor. An importer must land the imported goods at a seaport or airport. He can clear them only after completion of customs formalities. For this purpose, the seaports and airports are approved and provide 4 (1995) 3 SCC 151 storage facilities and Customs officers are accommodated therein to facilitate clearance. For the occupation by the imported goods of space in the seaport or airport, the

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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.

xxx xxx xxx

44. It cannot be gainsaid that, by reason of unjustified detention of his goods by the Customs Authorities, the importer is put to loss by having to pay demurrage charges for the periods of such detention. The Central Government is empowered by Section 35 of the International Airports Authority Act, 1971, and Section 111 of the Major Port Trusts Act, 1963 to issue to the Authority and the Board 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 Board 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." Justice Venkatachala, in his concurring judgment, after referring to the various judgments of this Court cited hereinabove, held as follows:

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

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xxx xxx xxx

69. Therefore, my answer to the question considered by me is in the negative i.e. the Collector of Customs empowered under sub- section (1) of Section 45 of the Customs Act, 1962 to approve persons to be custodians of imported goods in customs areas until they are cleared as provided for therein, while approving the International Airports Authority of India to be the custodian of such imported goods in the customs area of Indira Gandhi International Airport, New Delhi and Central Warehousing Corporation to be the custodians of such imported goods received at the customs area -

the Container Freight Station, CWC Complex, Pragati Maidan, New Delhi, by issue of public notice or otherwise in that regard, if by such notice or otherwise directs such custodians not to collect custody charges from the consignees of such goods - "the Cargo", because of detention certificates issued by him or his delegates, will not be acting within the powers conferred upon him under the Act, its Rules or its Regulations and hence directions given by the Customs Collector or his delegatees to release the goods of importers or consignees without collecting demurrage charges from them cannot be enforced by courts either against IAAI or CWC." This Court clearly held that Section 45 of the Customs Act did not, in any manner, affect the rights to the International Airport Authority to collect charges from the importer.

28. In Union of India v. R.C. Fabrics (P) Ltd.5, this Court followed the law laid down in Grand Slam (supra). Thereafter, in Om Prakesh Biyani v. Board of Trustees, Port of Calcutta6, 5 (2002) 1 SCC 71 6 2002) 3 SCC 168 this Court, after referring to Section 58 of the Major Port Trust Act, held as follows:

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"8. ...........Thus the charges of the 1st Respondent are to be paid before the goods are removed. The High Court seriously erred in permitting removal of the goods without payment of the port charges. To be noted that it was never disputed that the charges were payable. The 1st Respondent was not concerned with the dispute as to who had to pay the charges. It was the appellant who was interested in clearance of the goods. It was for him to have paid the charges and cleared the goods. Even if it was the appellant's case that the Customs Authorities had to pay the charges, the appellant should have first cleared the goods by paying charges due to the 1st respondent and then claimed reimbursement from the Customs Authorities."

36. The next issue which arises is whether any direction could be issued to the DRI/Customs Authorities to pay the demurrage charges to the Port Trust and the detention charges to the Shipping Line.

37. We have already referred to a number of decisions wherein the law has been clearly laid down that even if the importer is not at fault, it is the importer alone who is liable to pay the demurrage charges. As far as detention charges are concerned, this is a private contract between the importer and the carrier, i.e. Shipping Line. The DRI/Customs authorities can be directed to pay the demurrage/detention charges only when it has proved that the action of the DRI/Customs Authorities is absolutely mala fide or is such a gross abuse of power that the officials of the DRI/Customs should be asked to compensate the importer for the extra burden which he has to bear. Even if an importer feels that it has been unjustly dealt with, it must clear the goods by paying the charges due and then claim reimbursement from the customs authority."

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8. The question therefore would need to be addressed as to

whether is this a case where the DRI Custom Authorities can

be directed to pay the demurrage/ detention charges. Can it

be said to be an Act which is malafide or of a gross abusive

powers that the officials of the customs or the DRI could be

asked to compensate the importer for the extra burden which

he had to bear.

8.1. Here is a case where the importer is of the strong

feeling that it had been unjustly dealt with and the goods

ought to have been cleared by the Customs Authorities. Many

of its requests have been not paid any heed to. It had already

paid the charges due and now have claimed the

reimbursement.

8.2. We are not in agreement with the submissions made by

the appellant that the respondent no.1 ought to have a taken a

recourse of the civil law by preferring the suit and this could

not have been decided without adducement of evidence and

also following the procedure of cross examining the person.

According to us, the learned Single Judge has committed no

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error in directing the respondent authority to pay the

demurrage. We must not be oblivious of the fact that the Apex

Court in case of Shipping Corporation of India (supra) had

been quite clear that the goods in question had already been

directed to be released without payment of demurrage

charges. It was also the case where the Court found that High

Court had already concluded 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. Therefore, the Customs Authorities would be bound to

bear the demurrage charges in absence of any provision

absolving the Customs Authority from that liability. Here the

facts have grossed out.

8.3. We must also notice the fact that undoubtedly the

appellant had acted as per the policy of the Government of

India of not allowing the export of the goods of 87 containers

from the Kandla Port Trust but while so doing, it had

forgotten the fact that the clearance certificate of all the 87

containers had been given following the procedure and the

same had been issued by the Customs Officers under the

provision of Sections 50 and 51 of the Customs Act before

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27.06.2006. It was only on account of the non-availability of

the shipments that the 67 containers could not be physically

exported beyond the territory of India.

8.4. The Division Bench of this Court had held the appellant's

action of not permitting the loading of the goods to be illegal.

There was no fault of the petitioner. He was paying the

ground rent, demurrage charges of the respondent nos. 4 and

5 whose containers had been used for storing the goods for

the export. The goods having been cleared under Section 51

of the Customs Act on 23.06.2006 and 24.06.2006. Even if

there was a subsequent notification which had been issued,

the right of the respondent no.1 to export the goods could not

have been curtailed on account any policy decision

particularly, when the notification made it quite clear and the

Division Bench of this Court while allowing the petition and

holding the notification of 27.06.2006 to be applicable from

the date of issuance of the notification, those consignments

which had already been cleared by the Customs Department

could not have been covered, therefore, the authority

concerned could not have not paid any heed to the request of

the petitioner. The said decision of the Division Bench was

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challenged by the appellant before the Apex Court. Though

there was no order of staying the judgment of the Division

Bench, the authority did not permit the respondent no.1 to

export the goods and that also had caused huge expenditure

towards the ground rent/ demurrage. When it called back all

the goods which were meant for the export, they were sold in

the local market. The decision of the High Court was

challenged before the Apex Court and all such appeals arising

out of the Special Leave Petition came to be disposed of on

07.11.2006.

8.5. The decision of this Court in Special Civil Application

No. 14642 of 2006 was upheld and it was held by the Apex

Court that the action of the respondent in not permitting the

goods for export, even though clearance certificate was issued

under the Customs, as an illegal action, since in the very case

of the respondent no.1, the Apex Court has finally decided the

issue. The relief sought for by the respondent no.1 has been

rightly given by the learned Single Judge.

9. Not only the decision has no flow, it is given with much

clarity of thoughts as also applying the actual law which has

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governed the fields. The present appeal, therefore, deserves

rejection. Accordingly is disposed of. Let the compliance, as

directed by the learned Single Judge, be made within a period

of eight (08) weeks. CA if any shall stand disposed.

(SONIA GOKANI,CJ)

(RAJENDRA M. SAREEN,J) Bhoomi