Collectors of Customs Vs. Margra Industries Ltd. - Court Judgment

Excerpt:
1. revenue has filed this appeal against the order-in-appeal no. 154/04 dated 14.6.2004 by which the commissioner (appeals) has held that the revenue is liable to reimburse the demurrage and detention charges paid by m/s. margra industries ltd. 2. shri vikas kumar, learned s.d.r., mentioned that the question of payment of demurrage and detention charges is not a matter that can be decided by the commissioner (appeals) as such charges are not covered by the provisions of customs act, 1962. he relied upon the decision in the case of sawhney export house (p) ltd. v. c.c., mumbai, 2001 (132) e.l.t. 81 (t) wherein it has been held by the tribunal that provisions of section 27 do not deal with the refund of any demurrage charges and there is no provision for refund and reimbursement of demurrage charges paid by an assessee; that the tribunal, therefore, has rejected the appeal filed by the importer.3. countering the arguments, sh. b.l. narasimhan, learned advocate, submitted that it has been held by the supreme court in the case of shipping corporation of india ltd. v. c.l. jain woolen mills, 2001 (129) e.l.t. 561 (s.c.) that the carrier/custodian having their right to recover the demurrage and container charges and the innocent importer not being liable to pay the same, customs authorities would be bound to bear the demurrage charges. reliance has also been placed on the decision in the case of navneet kumar didwania v c.c., calcutta (fort), 2002 (145) e.l.t. 6 (cal.).4. we have considered the submissions of both the sides. we find force in the submissions of the learned s.d.r. that the commissioner (appeals) does not have jurisdiction to hear the appeal under sec.128 of the customs act against the order of the assistant collector disallowing the reimbursement of demurrage and detention charges.section 128 empowers any person aggrieved by any decision or order passed under the customs act by an officer of the customs lower in rank than the commissioner of customs to file and appeal before the commissioner (appeals). the payment of demurrage and detention charges and their reimbursement by the customs authorities does not fall within the purview of customs act and such an order passed by the assistant commissioner denying reimbursement of such charges cannot be appealed before the commissioner (appeals). accordingly, the impugned order passed by the commissioner (appeals) is without jurisdiction and is set aside. the appeal of the revenue is allowed.

Judgment:
1. Revenue has filed this appeal against the Order-in-Appeal No. 154/04 dated 14.6.2004 by which the Commissioner (Appeals) has held that the Revenue is liable to reimburse the demurrage and detention charges paid by M/s. Margra Industries Ltd. 2. Shri Vikas Kumar, learned S.D.R., mentioned that the question of payment of demurrage and detention charges is not a matter that can be decided by the Commissioner (Appeals) as such charges are not covered by the provisions of Customs Act, 1962. He relied upon the decision in the case of Sawhney Export House (P) Ltd. v. C.C., Mumbai, 2001 (132) E.L.T. 81 (T) wherein it has been held by the Tribunal that provisions of Section 27 do not deal with the refund of any demurrage charges and there is no provision for refund and reimbursement of demurrage charges paid by an assessee; that the Tribunal, therefore, has rejected the appeal filed by the importer.

3. Countering the arguments, Sh. B.L. Narasimhan, learned Advocate, submitted that it has been held by the Supreme Court in the case of Shipping Corporation of India Ltd. v. C.L. Jain woolen Mills, 2001 (129) E.L.T. 561 (S.C.) that the carrier/custodian having their right to recover the demurrage and container charges and the innocent importer not being liable to pay the same, Customs authorities would be bound to bear the demurrage charges. Reliance has also been placed on the decision in the case of Navneet Kumar Didwania v C.C., Calcutta (Fort), 2002 (145) E.L.T. 6 (Cal.).

4. We have considered the submissions of both the sides. We find force in the submissions of the learned S.D.R. that the Commissioner (Appeals) does not have Jurisdiction to hear the appeal under Sec.128 of the Customs Act against the Order of the Assistant Collector disallowing the reimbursement of demurrage and detention charges.

Section 128 empowers any person aggrieved by any decision or Order passed under the Customs Act by an officer of the Customs lower in rank than the Commissioner of Customs to file and appeal before the Commissioner (Appeals). The payment of demurrage and detention charges and their reimbursement by the Customs authorities does not fall within the purview of Customs Act and such an Order passed by the Assistant Commissioner denying reimbursement of such charges cannot be appealed before the Commissioner (Appeals). Accordingly, the impugned Order passed by the Commissioner (Appeals) is without jurisdiction and is set aside. The appeal of the Revenue is allowed.