The central legal point established is the requirement to follow due procedure of law for release of goods under the Customs Act, 1962, and the limitation on customs cargo service providers to charge rent or demurrage on seized or detained goods as per Regulation No.2(1)(b).

ORDER :

J.B.PARDIWALA, J.

1. On 28.04.2022, this Court passed the following order:

“1. We have heard Mr. Tirth Nayak, the learned counsel appearing for the writ-applicant.

2. Prima-facie, it appears that a very high-handed arbitrary action on the part of the respondent no.5 herein has dragged the writ-applicant to a second round of litigation.

3. We take notice of the fact that the writ-applicant had come before this Court by filing the Special Civil Application No.14849 of 2021 essentially with a prayer that the consignment comprising Chinese Knotted Woollen Carpets detained on 06.01.2021 by the respondent no.2 may be ordered to be released.

4. A Co-ordinate bench of this Court to which one of us [Ms. Nisha M. Thakore, J] was a party after exhaustive hearing delivered a detailed judgment disposing of the writ application with appropriate directions and observations. We quote the observations made in Paragraphs-31, 32 and 33 respectively as under:-

“31. We notice that the petitioner, on one hand, has approached this Court by preferring the petition under Article 226 of the Constitution of India and he has chosen not to cooperate to complete the pending inquiry in relation to M/s. Kaka Carpets and on the other hand, he has furnished the bond before this Court and has ensured to cooperate with that inquiry. Both being separate issues and his medical condition, since did not permit him to approach in a fortnight time, with his specific assurance to the respondent, objection raised is not worth sustaining. The Court is of the opinion that there is a sufficient and independent devise and mechanism under the law for him to appear and assist the inquiry/investigation. However, the applicant’s non-appearance from inquiry cannot be a valid ground for the authority to hold back his goods without following any legal procedure as contemplated under the law of seizure and, hence, the release should be made immediately within one week from the date of receipt of the copy of this order on following due procedure of law.

32. It is to be noted that there is no dearth of power with the respondent for it to seize the goods and provisional release could have been also permitted in such eventuality. Here neither the seizure is made nor any other proceedings pursuant to the lackadaisical approach to the summons is addressed. And, therefore, this Court needs to show indulgence without even entering into the binding decision of Canon India Pvt. Ltd.(supra) of the Supreme Court.

33. Petition is allowed. Consignment of carpets of the petitioner shall be released without loss of time within a week of receipt of the copy of this order. The petitioner shall abide by his undertaking without fail. The petitioner is also permitted to request for demurrage to the respondent, which shall consider the said request in wake of the findings and observations made herein on following due process of law.”

5. Thus, despite there being a direction to release the consignment of Carpets without any further delay, till this date, the consignment has not been released as the respondent no.5 is demanding demurrage charges to the tune of Rs.25,00,000/- [Rupees Twenty Five Lakh Only]. The total value of the goods is Rs.16,00,000/- [Rupees Sixteen Lakh only].

6. Our attention was drawn to a Communication dated 02.02.2022 by the Deputy Commissioner (SIIB), Customs House, Mundra to the Deputy Commissioner, Dock Examination (DE), Mundra stating as under:-

“OFFICE OF THE PRINCIPAL COMMISSIONER OF CUSTOMS

CUSTOMS HOUSE, MUNDRA CUSTOM, 5-B PORT USER

BUILDING

(PUB),

MP & SEZ, PORT ROAD, MUNDRA

Phone 02838-271162/271421 FAX : 02838-271421

Email: (not readable)

P.No.5/20-01/ not readable BA CHM2021-22 Date 02.002.2022

To,

The Deputy Commissioner,

Dock Examination (DE),

CN, Mundra.

Sir,

Subject: Release of the cargo/goods-Reg.

Please refer to the above mentioned subject.

In this regard, it is to inform that examination of the goods imported under Bills of Entry No.4956991 dated 06/8/2021 was carried out by the O