- (1.) The petitioner is a company engaged in the manufacture and sale of "Carbon Black" from its unit situate at Ghaziabad. The raw material for manufacturing carbon is "Carbon Black Feed Stock" (CBFC), which is classifiable under the Customs Tariff Act, 1975. The petitioner imported 2296.50 metric tonnes of CBFC from M/s Koppers Carbon and Chemical Ltd. from China through three invoice bills. These goods were imported in 91 ISO containers belonging to M/s Fourcee Infrastructure Equipment Pvt. Ltd. of Mumbai. In accordance with the provision of Section 46 of the Customs Act, 1962 (hereinafter referred to as the Act) the consignment arrived at Inland Container Division (ICD) at Dadri on 28th June, 2014, 6th September, 2014, 8th September, 2014 and 9th September, 2014. The petitioner alleges that the Deputy Commissioner of Customs, Noida-respondent no.3 detained the goods and did not clear them nor levied any customs duty and, on the other hand, sent the sample for a live test to Central Revenue Control Laboratory, New Delhi (CRCL) on 6th September, 2014. Since the testing of the sample was expected to take some time, the petitioner vide letters dated 16th September, 2014 and 19th September, 2014 requested the Commissioner of Customs, Noida and the Deputy Commissioner of Customs, Noida-respondent nos.2 and 3 respectively praying for clearance of the goods on provisional assessment against test bonds as per the instructions issued by the Central Board of Customs. The petitioner alleges that no orders were passed on these applications nor goods were released on provisional assessment. The petitioner, thereafter, filed an application dated 22nd September, 2014 under Section 49 of the Act for storage of imported goods in a warehouse pending clearance. No orders was passed by respondent no.3 on this application. In the meanwhile, CRCL submitted its report indicating that the goods, which was sought to be imported were hazardous in nature as it contained waste constituents. Based on this report, respondent no.3 directed the petitioner to obtain a no objection certificate from the Ministry of Environment and Forest (MOEF). The petitioner accordingly, approached the MOEF and eventually the MOEF issued a letter dated 15th December, 2014 indicating that the goods does not come under the category of hazardous under the Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 2008 (hereinafter referred to as the Rules of 2008). Inspite of this letter being issued, respondent no.3 sought further clarification with regard to the goods being hazardous in nature. The MOEF vide their letter dated 29th December, 2014 again informed respondent no.3 that the goods imported by the petitioner was not hazardous and that the provisions of the Rules of 2008 were not attracted.
(2.) Based on the aforesaid instructions issued by the MOEF dated 29th December, 2014, the custom authorities assessed the imported the goods of the petitioner on 6th January, 2015. On the basis of this assessment, the petitioner deposited the customs duty at the appropriate rate on 7th January, 2015 and 9th January, 2015. On 15th January, 2015 the customs authorities permitted clearance of the goods by putting a seal on the invoice bill as "imported detached" meaning thereby that the goods could be cleared by the importer. According to the petitioner, this was a delivery order issued by the custom authorities. However, based on this, the petitioner approached respondent no.4-Albatross Inland Ports Pvt. Ltd., which is the "customs cargo service provider" contemplated under Section 45 of the Act read with Handling of Cargo in Customs Areas Regulations, 2009 (hereinafter referred to as the Regulations of 2009) for release of the goods. The said respondent demanded demurrage charges amounting to Rs.7,67,04,408/-. The petitioner applied for waiver of the demurrage charges. The customs authorities directed respondent no.4 to consider the request of the importer, namely, the petitioner favourably citing that as the consignment was held up for clarification from the MOEF. Based on the petitioner's application, respondent no.4 sent an e-mail on 27th January, 2015 to the petitioner indicating that they have agreed to waive 60% of the demurrage charges subject to the condition that the payment should be made within 15 days. However, the said respondent issued an invoice on 28th January, 2015 formally raising a demand of Rs.7.60 crores. Since the petitioner refused to pay demurrage charges contending that the same was not payable as there was no fault on their part, the petitioner, accordingly, filed the present writ petition in March, 2015 praying for the following reliefs: "A. Issue a writ, order or direction in the nature of mandamus commanding Respondents No.2 & 3 to ensure release of imported goods namely Carbon Black Feed Stock imported against Bill of Entry No.6572055 dated 27.8.2014, 6595305 dated 30.83.2014 and 6595308 dated 30.8.2014, without demand/payment of any amount by the Petitioner towards demurrage charges demanded by Respondent No.4 for the period during which the imported goods remained under detention pending examination by Respondent No.3, the custody of goods having been given to Respondent No.4, solely for the convenience of Respondent No.3 without any agreement with the Petitioner; B. Issue an appropriate writ, order or direction directing the Respondents No.2 & 3 to compensate the Petitioner with an amount of Rs.2,02,05,640/- which is quantified on the basis of container detention charges of Rs.2,02,05,640/- demanded by the owner of the 91 ISO containers i.e. M/s Fourcee Infrastructure Equipments Pvt. Ltd., 431, Laxmi Mall, Laxmi Industrial Estate, New Link Road, Andheri West, Mumbai, on account of detention of 91 ISO containers containing the impugned goods by Respondent No.3; C. In the event, this Hon'ble Court is pleased, not to grant Relief A, then an appropriate writ, order or direction be issued directing the Respondents No.2 & 3 to additionally compensate the Petitioner with an amount of Rs.7,67,04,408/-, which is quantified on the basis of demurrage charges of Rs.7,67,04,408/- demanded by Respondent No.4 for the period during which the imported goods were detained for examination by Respondent No.3; D. Issue any other writ, order or direction, which this Hon'ble Court deems fit in the facts and circumstances of the case; E. Award costs to the Petitioner."
(3.) At the time of hearing the petitioner has confined his relief to prayer A and C and submitted that he does not wish to press relief B. The petitioner in a nutshell has prayed that he is not liable to pay demurrage charges to respondent no.4 and in the alternative, if demurrage charges has to be paid to respondent no.4, the same should be paid by the customs authorities and not by the petitioner. In this backdrop, we have heard Sri S.D. Singh, the learned Senior Counsel assisted by Sri N ishant Mishra, the learned counsel for the petitioner, Sri B.K.S. Raghuvanshi, the learned counsel for the Custom Department and Sri A.K. Verma, the learned counsel along with Sri Rajiv Joshi and Sri Siddharth Yadav, the learned counsels for respondent no.4.;