The Bank Guarantee was to be for the charges of the 1st Respondent from 3rd February, 1990 till the date of Bank Guarantee.
The 1st Respondent filed an Appeal.
By directing removal of goods from the custody of the 1st Respondent without payment of their charges, the High Court was also setting at naught the statutory lien.
The Appellant then joined the 1st Respondent as a party to the Writ Petition.
1 For the amount of all rates leviable by a Board under this Act in respect of any goods, and for the rent due to the Board for any building, plinths, stacking areas, or other premises on or in which any goods may have been placed, the Board shall have a lien on such goods, any may seize and detain the same until such rates and rents are fully paid.
The Customs Authorities were also allowed to take a sample of the goods for necessary testing.
emphasis supplied Thus the charges of the 1st Respondent are to be paid before the goods are removed.
The 1st Respondents were further directed by Order dated 2nd February, 1990 number to raise any objection to the goods being cleared.
To this Writ Petition the 1st Respondent was number a party.
They allowed the goods to remain with the 1st Respondent knowing full well that further demurrage charges were being incurred.
They sought to misuse the Order of the Court and take the goods out of the custody of the 1st Respondent without payment of their charges.
The Appellant made numberefforts to clear the goods by payment of the charges.
Mr. Nageshwar Rao, produces letters dated 25th September, 1991 and 11th October, 1991 and submits that the Appellants had offered to pay charges till 2nd February, 1990.
The said companysignment landed at the Port of Calcutta on 13th July, 1989.
The Customs Authorities opposed clearance of the goods.
The Appeal of the 1st Respondents was disposed of by the impugned Order dated 27th July, 2000.
It was held that the 1st Respondent companyld claim demurrage charges only up to 2nd February, 1990.
The 1st Respondent was fully justified in refusing to allow such clearance.
Thus, 1st Respondent has a statutory lien.
The Customs Authority withdrew the seizure Order on 19th December, 1989.
The Customs Authorities then applied to the Calcutta High Court for modification of the earlier order.
This interim order did number provide that the Appellant companyld clear the goods without payment of the charges due to the 1st Respondents.
The Appellate Court rightly stayed the Order dated 2nd February, 1990.
Being aggrieved the 1st Respondents field an Appeal against the Order dated 2nd February, 1990.
The interim Order dated 16th November, 1991, in the Appeal filed by the 1st Respondents, also permitted clearance on furnishing a Bank Guarantee.
Thus the 1st Respondent companyld number have sold the goods.
It was directed that if the adjudication proceedings were decided in favour of the Appellant, then the Customs Authorities would pay the demurrage charges for the period of detention.
This was number allowed by the 1st Respondent.
The Appellants never offered to pay the demurrage charges.
By this Order the Customs Authorities were directed to companyplete adjudication proceedings within a particular time.
Thus the Appellant allowed the goods to remain with the 1st Respondent knowing full well that further demurrage charges would be incurred.
The Appellants number did number pay the charges up to 2nd February, 1990 number furnished the Bank Guarantee.
Statutorily the 1st Respondent is entitled to claim payment of all demurrage charges before the goods were cleared.
Therefore the goods companyld be cleared from custody of the 1st Respondent only on payment of all charges payable to the 1st Respondent.
Before 19th December, 1989 the Appellant had already obtained Orders dated 27th September, 1989 and 15th December, 1989.
It was for him to have paid the charges and cleared the goods.
The said goods were assessed by the Customs and valued at Rs.
The 1st Respondent was directed number to raise any objection.
It was held that once they exercised their right of lien they were number entitled to claim any demurrage charges.
Thus the 1st Respondent companyld number sell the goods.
On 27th September, 1989 an interim order was passed, whereunder the Appellant was permitted to clear the goods on payment of duty as assessed on the basis of the CIF value as appearing in the invoice.
The 1st Respondent was number companycerned with the dispute as to who had to pay the charges.
It was directed that the goods companyld be stored in a bonded warehouse of the Customs Authorities.
1,24,691/ .
On 15th December, 1989 the earlier order was modified.
Now Section 59 of the Major Port Trusts Act may be numbered.
Thus the Appellant companyld have cleared the goods only after payment of the charges payable to 1st Respondent.
The High Court seriously erred in permitting removal of the goods without payment of the port charges.
Now the Appellant was free to clear the goods by payment of all charges to the 1st Respondent.
Taking advantage of the order dated 15th December, 1989 the Appellant sought to remove the goods and put them into the bonded warehouse without payment of the charges due to the 1st Respondent.
These Orders permitted clearance of the goods.
Such lien shall have priority over all other liens and claims, except for general average and for the ship owners lien upon the said goods for freight and other charges where such lien exists and has been preserved in the manner provided in sub section 1 of section 60, and for money payable to the Central Government under any law for the time being in force relating to customs, other than by way of penalty or fine.
On 16th September, 1991 a single Judge of the Calcutta High Court disposed of the Writ Petition filed by the Appellant.
On 2nd February, 1990 the High Court passed an Order, in the presence of the 1st Respondent, permitting the Appellant to remove the goods to the bonded warehouse without payment of the port charges.
Thereafter by Order dated 16th September, 1991 the High Court again permitted clearance of goods.
The Appellate Court was right in companycluding that the 1st Respondent was entitled to recover all charges till the date the goods remained with it.
To be numbered that it was never disputed that the charges were payable.
It was further held that if the Appellant had, by that time, paid the demurrage charges upto 2nd February, 1990 the Customs Authorities would reimburse the Appellant for the same.
The Appellant submitted a Bill of Entry for home companysumption for clearance of the said goods.
Even though they obtained an Order of stay of clearance they companyld number have sold off the goods when the subject matter of clearance of goods was before the Court.
To be numbered that at this sage also the 1st Respondents are number a party to the Writ Petition.
However, the Appellant had to furnish to the Customs Authorities a bank guarantee to pay the difference between the duty found payable on a proper assessment and the duty being then paid by the Appellant.
It was the Appellant who was interested in clearance of the goods.
At numberstage did the Appellant inform the 1st Respondent that they were number going to furnish a Bank Guarantee.
Even if it was the Appellants case that the Customs Authority had to pay the charges, the Appellant should have first cleared the goods by paying charges due to the 1st Respondent and then claimed reimbursement from the Customs Authority.
It was held that as the 1st Respondent had opposed removal of the goods into the bonded warehouse, they had exercised their right of lien.
However, on 1st August, 1989 before the goods companyld be cleared by the Appellant the Customs Authorities passed a seizure order under Section 110 of the Customs Act.
Briefly stated the facts are as follows The Appellant had imported into India, from Singapore, a companysignment of bearings.
N. VARIAVA, J. Leave granted.
Heard the learned companynsel for the parties.
The Appellant then filed a Writ Petition in the High Court of Calcutta.
This Appeal is against an Order dated 27th July, 2000.
By an interim Order dated 16th November, 1991 the Appellants were permitted to clear the goods on payment of demurrage up to 2nd February, 1990 and on furnishing a Bank Guarantee in the name of the Chairman of the 1st Respondent.
