JUDGMENT

Sanjay Kishan Kaul, J.

1. The refusal by the appellant to deliver the subsequent consignment to respondent nos.1 and 2 on account of a dispute about the non payment of warehousing charges for the first consignment had given rise to the present litigation. It is an undisputed fact that there was no controversy of any alleged dues in respect of the second consignment. A connected question arising for consideration is whether such detention was possible even if the consignment was warehoused without the consent of the consignee to the warehousing corporation.

2. The respondent no.1 imported acrylic scrap in pursuance to a bill of entry dated 29.10.1992 in three containers of a declared value of USD 240 per metric ton. However, on their import into India, the custom authorities assessed the price of the goods at USD 475 per metric ton resulting in notices being issued by custom authorities for adjudication. The goods were not cleared and were warehoused with the appellant. It is during the pendency of this dispute that a second consignment of respondent no.1 vide a bill of entry dated 06.09.1993 was received in India. The bill of entry was presented for home consumption and on inspection of the goods, the custom authorities assessed the total duty of Rs.5,41,016/- which was duly deposited on 17.09.1993. The delivery of the goods was, however, not given to the petitioner by the appellant on the ground that a sum of Rs.1,60,000/- was due to the appellant as warehousing and insurance charges in respect of the first consignment as on 17.09.1993. The same was the fate of yet another consignment imported by the respondent no.1 vide a bill of entry dated 03.08.1993.

3. These actions of the appellant resulted in filing of WP(C)4480/1993 by respondent nos.1 & 2, respondent no.2 being the Managing Director of respondent no.1.

4. In the proceedings of the said writ petition, interim orders were passed on 05.11.1993 on account of the Court observing that prima facie it was of the view that the respondent nos.1 was not liable to pay the storage charges of the appellant, but respondent no.1 agreed to furnish the bank guarantee for the amount claimed by the appellant. The second consignment was thus directed to be released by the appellant without payment of any further charges. Insofar as the third consignment was concerned, a direction was passed that respondent no.1 could get it cleared on payment of the custom duty (which was stated to have been paid) and warehousing charges till date of delivery. Respondent no.1 took delivery of the four containers covered by the second consignment, but insofar as the third consignment was concerned, respondent no.1 was not agreeable to pay the warehousing charges on the ground that the goods were not warehoused by the respondent no.1 but were detained by the appellant of their own because of non payment of warehousing and insurance charges of the first consignment. It is in this context that the question arose whether the appellant at all could have detained the third consignment even assuming that they were entitled to detain any subsequent consignment on account of the previous non payment.

5. Learned Single Judge vide the impugned order dated 29.04.2003 allowed the writ petition and directed the release of the consignment imported vide bill of entry dated 03.08.1993 without claiming any warehousing or insurance charges from respondent no.1. It is this judgment which is sought to be challenged by the appellant. The appeal was finally admitted on 22.09.2003 and interim directions were passed for the respondent nos.1 and 2 to pay the insurance charges, handling charges and entry fee, but no directions were made for payment of the warehousing and service tax. The interim application was finally disposed of on 21.05.2004 when the learned ASG appearing for the appellant submitted that the appellant was prepared to release the goods, but the parties would ultimately abide by the decision of