Subsequent change of opinion and issuance of Circular by the Revenue would not make them liable for demurrage charges unless the initial action is palpably wrong or wholly unacceptable.

ORDER

1. Leave granted.

2. We have heard the Learned Counsels for the parties.

3. The grievance raised in this appeal by the appellant(s) - importer(s) is to the direction issued by the Learned Single Judge of the Bombay High Court in Writ Petition No. 624 of 1996 and Notice of Motion No. 239 of 1996 by which though the Learned Judge held the appellant to be entitled to detention certificate and refund of detention charges paid to the Customs Authorities, the appellants were directed to move the Port Trust authorities so far as the claim of payment/refund of demurrage/BPT charges are concerned. The said order has been upheld in appeal.

4. The materials on record, particularly the statements made in paragraphs 4 and 5 of the counter/reply affidavit filed on behalf of the Revenue before the High Court in Notice of Motion No. 239 of 1996 along with Writ Petition No. 624 of 1996, would go to show that the goods were not allowed to be cleared by the importer(s), by availing the benefit of credit that the importer(s) had earned, due to a dispute as regards the true meaning and purport of clause (iv) of the second proviso to condition (2) of the Notification No. 104 of 1995 dated 30th May, 1995 as amended. In fact, there was a direction dated 19th February, 1996 of the Central Board of Excise and Customs which had virtually prohibited the Commissioner from clearing the goods.

5. The appellants moved the High Court of Bombay and on the strength of the conditional interim order of the High Court dated 15th April, 1996 the goods were cleared. Subsequently, on 14th May, 1996 the Revenue also clarified the position that the importer(s) was entitled to the benefit of credit.

6. When the writ petition came up for final arguments before the High Court it was contended that in view of the aforesaid subsequent development i.e. clarification dated 14th May, 1996 the stand of the Revenue was ex facie wrong and, therefore, the importer(s) would not be liable for payment of demurrage charges. Rather, it is the Customs Authorities who had unlawfully detained the goods which would be so liable.

7. It is in the aforesaid context and in the light of the aforesaid contention that the impugned directions were issued by the Learned Single Judge which has been affirmed by the Division Bench of the High Court in appeal.

8. We have read and considered the contents of paragraphs 4 and 5 of the counter/reply affidavit filed before the High Court on behalf of the Revenue. On a consideration of the averments contained therein we are fully satisfied that no mala fide intent or any extraneous reasons/grounds can be attributed to the Revenue in detaining and refusing to clear the goods of the importer(s). Rather, the actions of the Revenue were prompted by what we consider to be a possible understanding of the provisions of the Notification in force i.e. Notification No. 104/95, dated 30th May, 1995. The subsequent change of opinion and issuance of Circular bearing No. 4/1006, dated 14th May, 1996 would not make the Revenue liable as has been sought to be contended by the importer(s) unless the initial action is palpably wrong or wholly unacceptable which is not the position in the present case. A stand taken by the Revenue or an action undertaken which is subsequently corrected by the Revenue itself or corrected on the basis of a subsequent judicial pronouncement will not, ipso facto, make the Revenue liable for payment of demurrage charges as has been contended on behalf of the appellant(s) - importer(s). We, therefore, will have no occasion to interfere with the order of the High Court insofar as demurrage charges are concerned and issue any direction, as prayed for by the appellant(s) - importer(s).

9. Consequently and in the light of the above the appeal is found to be without any merit and is accordingly dismissed.