Unexplained delay in consideration of a detenu's statutory representation violates the detenu's fundamental right under Article 22 (5) of the Constitution of India.

( 1 ) THE claim of the petitioner in this writ petition is for the refund of the excess amount of demurrage which it had paid to the respondents 1 and 2. The sum of refund so claimed comes to Rs. 3,26,645. 00.

( 2 ) THE petitioner had imported multi-cable transit cable sealing system. According to the petitioner these goods were to be cleared under Tariff Item No. 85. 47 on the payment of duty @ 135. 75%. The Customs Department. however, with regard to the import of items made on 7th and 12th December, 1988 decided that the goods were to be cleared by paying duty @ 181. 75% under Tariff Item No. 39. Provisional clearance was granted and on payment of demurrage goods were released to the petitioner. Subsequently the present writ petition was filed and the claim was that demurrage should not have been charged because detention certificate had been issued in the present case.

( 3 ) BEFORE the filing of the writ petition the question as to whether the petitioner s import fell under Item No. 85. 47 or Item 39 has been settled in favour of the petitioner. On 8th January, 1990 the petitioner wrote a letter to the International Airport Authority of India in which it quoted an earlier observation of the International Airpport Authority of India on the claim of refund wherein the appropriate authority had stated that the question of refund would be considered after decision is taken by the Customs Authorities regarding the Classification of the goods in question. It was represented by the petitioner that by virtue of a tariff advice the classification of the imported Items was as per the demand of the petitioner and infact the Customs Authorities had already cancelled the bank guarantee and the bond which had been issued by the petitioner at the time of provisional clearance. Despite the decision of the Custom Authorities on 5th March, 1990 the Cargo Manager of the International Airport Authority of India informed the petitioner that the claim for refund of demurrage Was not admissible because the waiver could not be extended for detention due to the dispute in classification.

( 4 ) LEARNED Counsel for the petitioner has drawn our attention to two decisions of this Court, one in the case of Trishul Impex v UOI, 1991 (2) Delhi Lawyer, Page 1==43 (1991) DLT 538 and the other is that of Grand Slum International v. UOI, C. W. 554/91, decided on 21st Sep. 1991 wherein in somewhat similar circumstances this Court had directed that when ultimately the importer succeeds no demurrage charges should be levied. We are in agreement with this principle. If there Is a wrong classification made by the Customs Authorities or if the import is not validly allowed then the party making the import should not be allowed to suffer on account of mistake committed by the Customs authorities. If the classification had been correctly made then the goods would have been cleared within time and in the event of the non-clearance of the goods it is the petitioner who would have been bound to pay the demurrage. Where, however, as in the present case, the petitioner was rightly contending with regard to tariff items under which the goods should be cleared and the 517 Customs Authorities wrongly did not allow clearance under that tariff item, then it Is not the petitioner who should suffer. As and when it is finally determined that the petitioner was right in its legal submissions then the petitioner would be entitled to all the consequential benefits therefrom including the non-liability to pay the demurrage charges.

( 5 ) FOLLOWING the aforesaid two decisions this writ petition is allowed and the demurrage charges levied by the respondents on the petitioner from the date of the filing of the Bill of Entry till the date of release of the goods should be refunded to the petitioner.

( 6 ) THE petition stands disposed of. Petition allowed. DELHI HIGH COURT Present : Mr. Dalveer Bhandarl, J. HAMZA NOZOGLU-Petitioner Versus UNION OF INDIA AND OTHERS-Respon