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CASE NO.: Appeal (civil) 2681  of  2001

PETITIONER: SHIPPING CORPN. OF  INDIA LTD.

       Vs.

RESPONDENT: C.L. JAIN WOOLEN MILLS & ORS.

DATE OF JUDGMENT:       10/04/2001

BENCH: G.B. Pattanaik S.N. Phukan & B.N. Agrawal

JUDGMENT:

WITH Civil Appeal Nos.  2682-2684 of 2001. (@ S.L.P.(c) Nos. 5001, 9021/99 and SLP (c) No. 3063/2001 respectively)

L...I...T.......T.......T.......T.......T.......T.......T..J JUDGMENT

PATTANAIK,J.

   Leave Granted.

   In  this  batch  of appeals, a common  question  of  law having  arisen,  they  were  heard together  and  are  being disposed  of  by  this common judgment.   The  question  for consideration  is whether the appellant, who under the terms of  the  contract  between him and the owner of  the  goods, having a lien over the goods, until the dues are paid can be forced to release the goods, without charging any demurrage, merely  because  the customs authorities issued a  detention order  for  a  specified  period ?   We  would  discuss  the question  in  relation to the facts in the case between  the Shipping  Corporation of India vs.  C.L.  Jain Woolen Mills. The  respondent  C.L.   Jain   Woolen  Mills,  imported  the consignment  of polyester filament yarn from Korea to India. The  port  of  load  was  Busan in Korea  and  the  port  of discharge  was Bombay in India, but the place of delivery of goods  was ICD, Delhi.  The goods thus being brought to  the port of Bombay were discharged but there had been no customs clearance at Bombay and the sealed container was transhipped to  ICD,  Delhi,  where  it   remained  with  the  Container Corporation  of India.  The Shipping Corporation of India is engaged  in the business of carriage of goods.  On the terms and  conditions contained in the Bill of Lading, in  respect of  the  goods consigned to it, the corporation claims  that the  goods  cannot be released unless demurrage charges  are paid.   After the goods arrived in Delhi and remained in the custody  of the appellant, the customs authorities being  of the  opinion that import of polyester filament yarn weighing 5,376  kgs.   was unauthorised and directed confiscation  of the  same,  valued at Rs.11.5 lakhs under Section 111(d)  of the Customs Act, 1962.  The said customs authorities however

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permitted the owner to redeem the goods on payment of Rs.  7 lakhs.  That apart, a penalty of Rs.  1 lakh was also levied under  Section 112(a) of the Customs Act.  The owner of  the goods  assailed the order before the Customs, Excise &  Gold (Control)  Appellate  Tribunal  [for   short  CEGAT].    The tribunal  instead  of deciding the objections raised by  the owner  to  the  validity  of the  order  of  the  Additional Collector  of Customs, ordered that the advance licence  and DEEC  Book be amended and adjourned the appeal for a  period of three months.  The owner, therefore, approached the Delhi High  Court by filing a writ petition, which was  registered as Writ Petition No.  1604/91, praying quashing of the order of  the  customs  authorities, confiscating  the  goods  and imposing  the  penalty and that of the Import Trade  Control Authority enhancing the export obligation from 14,497.5 kgs. to  22,330 kgs.  of polyester fabric.  It was the contention of  the owner before the High Court that in accordance  with the  export  policy  and the Duty  Exemption  Scheme,  raw materials  could  be  cleared for home  consumption  without payment  of  import  duty.  To avail of  the  facility,  the importer  is  required to apply for grant of licence  called the  Advance  Licence  and on the basis of the  same,  raw materials  could  be imported without payment of  any  duty. According  to  the owner, under the licence, thus issued  by the  Controller of Imports and Exports, entitling import  of raw   materials  without  payment  of  duty,   the   customs authorities   committed  error  in   proceeding   with   the confiscation  proceedings and ordering confiscation as  well as  levying penalty.  The customs authorities as well as the Controller  of Imports and Exports had been arrayed as party respondents  in the writ petition.  Both of them as well  as Union  of  India  resisted the claim of the owner,  who  had imported  the goods in question.  The High Court disposed of the  writ  petition by judgment dated 9th  September,  1994, quashing  the  order of the Additional Collector of  Customs dated  10th August, 1990 as well as the order of the Customs Excise  and  Gold  (Control) Appellate Tribunal  dated  21st March, 1991 and directed the Collector of Customs to release the  goods forthwith.  The High Court also further held that since  the action of the customs authorities is illegal, the goods  in  question  will have to be released to  the  owner without payment of any detention or demurrage charges by the owner.   Needless  to mention, the Shipping  Corporation  of India,  the  appellant  in the present appeal, who  was  the carrier  and  who under the Bills of Lading had a lien  over the goods, until the dues are paid had not been made a party to  the aforesaid writ petition.  At this stage it may  also be  noticed that during pendency of the writ petition in the High  Court, an interim order had been passed, entitling the owner  to  take  release of the goods on payment of  Rs.   5 lakhs to the customs authorities and a bank guarantee of Rs. 5  lakhs  but the owner had not taken advantage of the  said interim  order  and  the goods continued to  remain  in  the custody  of the present appellant and demurrage charges went on  accruing.  The order of Delhi High Court was assailed in this Court by filing a Special Leave Petition by the Customs Authorities  but  that Special Leave Petition however  stood dismissed on 13.11.95 in SLP No.  5671/95.  The owner of the goods  having  failed  in  his  attempt  to  get  the  goods released,  notwithstanding  the orders of the High Court  in CWP  No.   1604/91,  filed an application for  initiating  a contempt  proceeding,  which  was   registered  as  CCP  No. 120/95.   The  High  Court  however came to  hold  that  the authorities  cannot  be held to be guilty of disobeying  the orders  of the Court and accordingly, dismissed the contempt

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petition.   While  dismissing  the  contempt  petition,  the learned  Judge,  granted  liberty to the owner to  move  the Division  Bench of the High Court for appropriate directions regarding  payment of demurrage/detention charges.  Pursuant to  the aforesaid observations in the contempt  proceedings, an  application  being  filed  by the owner,  the  same  was registered  as CM 4829/96.  That application was disposed of by  the  Division Bench of Delhi High Court by  order  dated 18th  January, 1999.  The Division Bench, while disposing of the  petition,  came  to hold that the  entitlement  of  the carrier  of the goods to charge demurrage charges and if so, whether  the customs authorities would be liable to pay  the same  or not is not required to be answered and is a matter, which  should  be sorted out between those two  corporations and the customs authorities.  But so far as the owner of the goods  are  concerned,  he  having   been  absolved  of  any liability  to  pay  the demurrage charges by virtue  of  the judgment  of  Delhi  High  Court dated  9.9.94  in  CWP  No. 1604/91,  he  would  be entitled to get the  goods  released without payment of the detention and demurrage charges.  The High  Court, therefore called upon the customs department as well  as the two corporations, who are the carriers to  sort out  the  matter within a specified period and further  held that if any detention or demurrages charges are payable, the same  shall  be paid by the customs department within  three weeks.   It  further  directed  the carrier  of  the  goods, including  the  appellant  to release the  goods  after  the customs  department  pays the  detention/demurrage  charges. Notwithstanding  the  aforesaid order, the goods  not  being released,   when  a  fresh   contempt  petition  was  filed, registered  as CCP No.  89/99, the High Court issued  notice on 25.2.99, calling upon the alleged contemnor to file their reply  by  11th March, 1999.  Against the initiation of  the aforesaid  contempt proceeding, the Shipping Corporation  of India  filed SLP No.  3391/99.  The order dated 18.1.99  was also  assailed  by  the   Shipping  Corporation,  which  was registered  as SLP No.  5001/99.  The container  Corporation of  India  filed  a  special  leave  petition  on  identical circumstances  and raising identical question, which is  SLP No.   9021/99.   The Union of India also assails  the  order dated   18.1.99  by  filing   Special  Leave  Petition   No. 3063/2001  along  with  the application for  condonation  of delay.   This  batch of cases were listed before a Bench  of two  learned Judges on 11th February, 2001 and after hearing the  matters for sometime, the Bench felt that there appears to  be some inconsistency between the decision of this Court in Union of India vs.  Sanjeev Woolen Mills, 1998(9) SCC 647 and  the Grand Slam Internationals case reported in 1995(3) SCC 151 and as such observed that the cases should be placed before  a  Three Judge Bench and that is how, this batch  of cases are before this three Judge Bench.  When these appeals by grant of special leave were placed before the Three Judge Bench  on  1st  March, 2001, we had directed  the  goods  be released  to  the  owner  without any  conditions  but  such release  will  be subject to the ultimate decision in  these appeals.

   The  stand of the carriers in this Court is that in view@@                                                         JJJJ of  the provisions of the Bills of Lading Act as well as the@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ terms  and  conditions  under  which  the  goods  have  been imported  the  corporation-carrier retains a lien  over  the goods until all the dues including the demurrage charges are paid  and  the  order of the Delhi High Court  in  the  writ

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petition  to which these carriers were not parties, will not obliterate  that  right.   The further contention  of  these corporations  is  that  the order of the  High  Court  dated 18.1.99  without  determining the rights of the carrier  and directing   to  sort  out  the   matter  with  the   customs authorities  is unsustainable and as such the same should be set  aside.   The stand of the customs authorities  and  the Union  of  India  on  the other hand  is  that  the  customs authorities  cannot be required to pay the demurrage charges merely  because  the  action of the customs  authorities  in detaining  the goods was found to be illegal by the Court of law.   According to the Union of India in such a case when a detention  certificate is issued by the customs authorities, the  carrier  of  goods will not be entitled  to  claim  any demurrage  charges notwithstanding the terms and  conditions of  the contract under which the goods had been carried  and on  this score, the order of the High Court dated 18.1.99 is erroneous.   The contention of the importer of the goods  on the  other hand is that in view of the findings of the  High Court  in  CWP No.  1604/91, specifically holding  that  the goods  in questions be released without payment of demurrage or  detention charges and the further finding to the  effect that  the  order of the customs authorities in  confiscating and  levying  penalty is illegal and invalid,  the  importer cannot  be  made liable to pay the demurrage  and  detention charges.   It is the further submission of the importer that notwithstanding the clear directions of the High Court, non- release  of goods was a gross violation of the Courts order and,  therefore,  the  appropriate   authorities  should  be suitably dealt with.

   In view of the submissions made at the Bar appearing for different  parties, referred to earlier, the first  question that  arises  for  consideration is whether in the  case  in hand,  the  importer of the goods can be made liable to  pay any  demurrage/detention  charges?   It is  undisputed  that under  the  terms  and conditions of Bills  of  Lading,  the carrier  had  a lien over the goods until all the  dues  are paid and the goods having been kept, not being released, the corporation-carrier   was  entitled  to   charge   demurrage charges.   But  in  view of the specific directions  of  the Delhi  High Court in the writ petition filed by the importer of  the goods, challenging the legality of the order of  the customs  authorities  in confiscating the goods and  levying penalty  and that order having reached finality by dismissal of  the special leave petition against the same filed by the Union  of  India, the liability of the importer to  pay  the demurrage  charges  ceases  and   that  question  cannot  be re-opened.

   The next question that arises for consideration which is a  larger  issue, namely if the customs authorities  do  not release  the  goods  and initiates proceedings  and  finally passes  order  of confiscation but that order is  ultimately set  aside in appeal and it is held by Court of law that the detention   of  the  goods  was   illegal,  then   in   such circumstances  whether the carrier of the goods who had lien over  the  goods for non- payment of duty, can  enforce  the terms  and  conditions of the contract against  the  customs authorities,  making the said authorities liable to pay  the demurrage  charges.  Needless to mention, demurrage  charges are levied for the place the goods occupy and for the period it remains not being released, on account of lack of customs clearance.  It may be noticed at this stage that the customs

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authorities  exercise its power under the provisions of  the Customs Act whereas the claim of the Corporation who acts as a  carrier  is  based upon the terms and conditions  of  the contract  between  the importer and the carrier.  So far  as the  powers  of the customs authorities are  concerned,  the same are circumscribed by the provisions of the Customs Act, 1962.   Section 8 of the Customs Act empowers the  Collector of  Customs to approve proper places in any customs port  or customs airport or coastal port for unloading and loading of goods  and specify the limits of the customs area.   Section 33  prohibits unloading of imported goods at any place other than  the  place  approved under Section 8(a)  of  the  Act. Section  34  provides that the imported goods shall  not  be unloaded from any conveyance except under the supervision of the  proper  officer.  Section 45 provides for clearance  of imported  goods.  The same provision may be extracted herein below in extenso:

   Sec.45  Restrictions on custody and removal of imported goods:

   (1)  Save as otherwise provided in any law for the  time being  in  force, all imported goods, unloaded in a  customs area  shall  remain in the custody of such person as may  be approved  by  the [Commissioner of Customs] until  they  are cleared  for  home  consumption  or are  warehoused  or  are transhipped  in  accordance with the provisions  of  Chapter VIII.

   (2) The person having custody of any imported goods in a customs  area,  whether under the provisions of  sub-section (1)  or under any law for the time being in force  (a)shall keep  a record of such goods and send a copy thereof to  the proper  officer;   (b)  shall not permit such  goods  to  be removed  from  the  customs area or  otherwise  dealt  with, except  under  and  in  accordance with  the  permission  in writing of the proper officer.

   (3)  Notwithstanding  anything contained in any law  for the time being in force, if any imported goods are pilferred after  unloading  thereof  in a customs area  while  in  the custody  of  a person referred to in sub- section (1),  that person shall be liable to pay duty on such goods at the rate prevailing on the date of delivery of an import manifest or, as  the case may be, an import report to the proper  officer under  section 30 for the arrival of the conveyance in which the said goods were carried.

   Under  the aforesaid provision, the imported goods would remain  in the custody of the person approved by the Customs Commissioner, until they are cleared for home consumption or are  warehoused  or are transhipped in accordance  with  the provisions  of  Chapter VIII.  Section 47 of the Act is  the provision to obtain clearance of goods for home consumption. Section  49 provides for storage of imported goods in public warehouse,  or  in a private warehouse, if permitted by  the Deputy  Commissioner of Customs or Assistant Commissioner of Customs.    Under  Chapter  IX  of   the  Act,  the   Deputy Commissioner  or  Assistant  Commissioner   of  Customs  may appoint  public  warehouses  wherein dutiable goods  may  be deposited,  as  provided  in Section 57 of the  Act.   Under Section   58,   the  Deputy    Commissioner   or   Assistant Commissioner  may  even license private  warehouses  wherein dutiable  imported  goods  could  be  deposited.   But   all

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warehoused  goods  would  be subject to the control  of  the proper  officer  of the customs department, as  provided  in Section 62 and the owner of the goods is required to pay the rent  and warehouse charges to be fixed by the  Commissioner of  Customs, as provided in Section 63.  No warehoused goods could  be taken out of the warehouse except for clearance of home  consumption  or for removal to another  warehouse,  as stipulated  in  Section 67 of the Act.  Section 68  provides the  procedure  which an importer would follow for  clearing the  warehoused goods for home consumption.  The  expression warehouse  has  been  defined in Section 2(43) to  mean  a public  warehouse  appointed under Section 57 or  a  private warehouse  licensed  under Section 58.  It is thus  apparent from  different provisions mentioned above that the  customs authorities  have  full power and control over the  imported goods and without the permission of the customs authorities, the goods cannot be cleared.  But at the same time, there is no  provision  in the Customs Act, conferring power  on  the Customs  Authorities  to  prohibit  or  injunct  any   other authority  where the imported goods are stored from charging the  demurrage charges for the services rendered for storing the  imported  goods.  We are not concerned in  the  present case with the provisions of either the Major Ports Trust Act or  International  Airport Authorities Act, as the  imported goods had not been stored either in any Major Port or in the international  air  cargo.  It may however be  necessary  to examine some of the provisions of the Bills of Lading Act as well  as  the  Contract Act, since the claim  of  both,  the Shipping  Corporation  and Container  Corporation,  charging demurrage  for  the space occupied for the goods, not  being released, is on account of the contract between them.  Under the  Indian  Bills of Lading Act, 1956, every  consignee  of goods,  named  in a Bill of Lading and every endorsee  of  a Bill  of  Lading,  is vested with absolute  right  over  the goods.   The  Bill  of  Lading is a  well  known  mercantile document  of  title,  which is transferred in  the  business world  by endorsement passing to the endorsee, the title  of the  goods  covered  by such Bill of  Lading.   Clause  (18) provides  for  payment  of  demurrage  charges  in  case  of non-clearance  of goods within the free time available.  The said clause is extracted herein below in extenso:

   Clause 18  Delivery of goods in Container:  If receipt of goods in container(s) is not taken by the merchant within 48  hours  after  discharge from the vessel  (or  after  the arrival  of the goods at place of delivery if named  herein) the  carrier shall be at liberty at his discretion either to unpack  the  container(s)  and to put the goods in  safe  on behalf  of  the  merchant  and at the  merchants  risk  and expense  or  to  charge  demurrage in  accordance  with  the carriers  tariff  applicable  to the route over  which  the goods  are carried.  If unpacking the goods of  container(s) is  required for whatever reason and the contents cannot  be identified  as  to  the marks and numbers,  cargo  sweepings liquid  residue  and  any unclaimed contents  not  otherwise accounted  for shall be allocated for completing delivery to the merchant.  The carrier shall not be required to separate or  deliver  goods  in  accordance with  the  brand,  marks, numbers, size or types of packages as stated by the merchant in  his  particulars  but only to deliver  total  number  of containers  (if  same loaded by the merchant or packages  or units)  (if container(s) loaded by the carrier) shown on the face of this Bill of Lading.

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   Clause  (2)  of  the Bill of Lading  defines  Carriers Tariff as follows:

   Clause (2)- Carriers Tariff:

   The terms of the carriers applicable tariff are incorporated herein and copies of the relevant provisions of the applicable tariff are obtainable from the carrier or the agents upon request.  In the case of inconsistency between this Bill of Lading and the applicable tariff, this Bill of Lading shall prevail.

   Clause  (14)  confers a lien on the goods for  all  sums payable under the contract.  The said clause is quoted below in extenso:

   Clause (14).  FREIGHT ETC.  EARNED

   ........All  unpaid  charges shall be paid in  full  and without any offset, counterclaim or deduction.  Any error in freight  or other charges or in the classification of  Goods is subject to correction and if on correction the freight or charges  are  higher the Carrier may collect the  additional amount from shipper or consignees.  The Carrier shall have a lien on the Goods and any documents relating thereto for all sums  payable  to the Carrier under the contract  (including without  limitation unpaid freight and dead freight upon any portion  of the Goods covered by the Shipping Order  granted in  respect hereof which may not have been shipped) and  the General  Average contribution to whomsoever due and for  the cost  of recovering the same and for that purpose shall have the  right  to sell the Goods by public auction  or  private treaty  without notice to the Merchant.  The Merchant  shall indemnify  the Carrier against all and any costs incurred by the Carrier in exercising his rights under this clause.

   The  expression Carrier under the definition clause in the  Bill of Lading means the Shipping Corporation of  India Limited  and/or associated company on whose behalf the  Bill of Lading has been signed.

   The  two  provisions of the Contract Act, on  which  Mr. Dave, appearing for the appellant, strongly relied upon, may now  be  noticed.  Section 170 is the right of lien  of  the bailee for the services rendered in respect of the goods and the  bailee has right to retain the goods until he  receives due  remuneration for the services he has rendered.  Section 171  is  the General lien of bankers, factors,  wharfingers, attorneys and policy brokers, who also retain as a security, the  goods bailed to them.  The contention of Mr.  Dave, for the  appellant  is  the  right of  the  appellant  to  claim demurrage  charges in respect of the goods, which is in  his custody,  the  said  goods  not  being  released,  within  a specified period, flows from the terms and conditions of the contract  between the importer and the corporation and  that right  cannot  be  taken  away by issuance  of  a  detention certificate  by the Customs authorities under the provisions of  the Customs Act and as such even if a Court directs that the  importer  is not liable to pay the  demurrage  charges, because of the illegal detention of the goods by the customs authorities,  the appellant would not be bound by the  same,

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particularly,  when  the  appellant was not a party  to  the proceedings   between  the  customs   authorities  and   the importer.   Learned Additional Solicitor General, Mr.  Mukul Rohtagi  however,  on the other hand contends  that  Section 45(2)(b)  of  the Customs Act prohibits release of  imported goods  from the customs area, except in accordance with  the permission in writing of the proper officer.  The expression otherwise  dealt with in the aforesaid provision is also a restriction  placed on the custodian and that is a  complete embargo  for  the goods being released.  The prohibition  in question  is  in  relation to removal of goods  as  well  as dealing with the goods in any manner.  This being the manner of  restrictions imposed for removal of the goods and at the same  time, conferring power on the customs authorities,  if after initiation of adjudication proceedings, a Court of law nullifies the same and the customs authorities then issues a detention certificate, then the importer would not be liable for  paying  any  demurrage   charges,  notwithstanding  the contract  between the importer and the appellant, and at any rate,  the  customs authorities cannot be fastened with  the liability  of paying the demurrage charges.  In this view of the  matter, the order of the Delhi High Court dated 18.1.99 must be held to be erroneous.  The rival contentions require careful  examination  of  the different  provisions  of  the Customs  Act,  the  Contract  Act as well as  the  Bills  of lading.

   Before   examining   the  correctness   of   the   rival submissions,   one   thing  is   crystal  clear   that   the relationship  between the importer and the carrier of  goods in  whose  favour the Bill of lading has been consigned  and who has stored the goods in his custody, the relationship is governed  by the contract between the parties.  Section  170 of the Indian Contract Act engraft the principle of Bailees lien,  namely if somebody has received the articles on being delivered  to  him and is required to store the  same  until cleared for which he might have borne the expenses, he has a right  to detain it until his dues are paid.  But it is  not necessary  in  the  case in hand to examine the  common  law principle  and the bailees lien inasmuch as the very  terms of  the contract and the provisions of the Bills of Lading,, unequivocally conferred power on the appellant to retain the goods,  until  the dues are paid.  Such rights  accruing  in favour of the appellant cannot be nullified by issuance of a certificate  of detention by the customs authorities  unless for such issuance of detention certificate any provisions of the  Customs  Act  authorises.  We had not  been  shown  any provisions  of  the  Customs  Act, which  would  enable  the customs  authorities  to compel the carrier, not  to  charge demurrage  charges,  the moment a detention  certificate  is issued.   It  may  be  undoubtedly  true  that  the  customs authorities  might have bona fide initiated the  proceedings for  confiscation  of  the goods which  however,  ultimately turned out to be unsuccessful and the Court held the same to be  illegal.   But  that  by itself, would  not  clothe  the customs authorities with the power to direct the carrier who continues  to retain a lien over the imported goods, so long as  his  dues  are  not paid, not to  charge  any  demurrage charges nor the so- called issuance of detention certificate would  also  prohibit  the carrier from raising  any  demand towards  demurrage  charges,  for   the  occupation  of  the imported  goods  of the space, which the proprietor  of  the space is entitled to charge from the importer.  The importer also  will  not  be entitled to remove his  goods  from  the

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premises  unless customs clearance is given.  But that would not  mean  that  demurrage charges could not  be  levied  on importer  for  the space his goods have occupied, since  the contract  between  the  importer and the proprietor  of  the space  is in no way altered because of the orders issued  by the  customs authorities.  The learned Additional  Solicitor General,  vehemently argued and pressed sub-section 2(b)  of Section  45  in support of his contention that the  imported goods  have  to  be  dealt   with  in  accordance  with  the permission  in writing of the proper officer of the  customs department  and  in  exercise  of such  power  when  customs authorities  initiate adjudication proceeding and ultimately confiscate  and levy penalty, when such order is struck down and  a detention certificate is issued, the said issuance of detention  certificate  would  come  within  the  expression otherwise  dealt  with  used  in  Section  45(2)(b),   and therefore, the proprietor of the space would be bound not to charge  any demurrage charges.  We are unable to accept this contention inasmuch as the expression otherwise dealt with used  in  Section 45(2)(b), in the context in which  it  has been  used,  cannot be construed to mean, it authorises  the customs  officer to issue a detention certificate in respect of the imported goods, which would absolve the importer from paying  the  demurrage charges and which would  prevent  the proprietor  of the space from levying any demurrage charges. Having scrutinized the provisions of the Customs Act, we are unable  to  find  out any provision which  can  be  remotely construed to have conferred power on the customs authorities to  prevent  the  proprietor of the space from  levying  the demurrage charges and, thereby absolving the importer of the goods  from  payment  of  the same.  In  fact  the  majority decision  in  Grand Slam Internationals case,  1995(3)  SCC 151, clearly comes to the aforesaid conclusion with which we respectfully agree.

   We  have  also  examined the decision of this  Court  in Union  of  India vs.  Sanjeev Woolen Mills, 1998(9) SCC  647 and  we  do not find any apparent inconsistency between  the decision of this Court in Grand Slam and that of the Sanjeev Woolen  Mills.  In Sanjeev Woolen Mills, the imported  goods were  synthetic  waste  (soft quality), though  the  customs authorities  detained  the same, being of the  opinion  that they  were  prime fibre of higher value and not soft  waste. On account of non-release, the imported goods incurred heavy demurrage  charges  but the customs  authorities  themselves gave  an undertaking before the High Court that in the event the  goods are found to be synthetic waste, then the Revenue itself  would  bear  the   entire  demurrage  and  container charges.   Further the Chief Commissioner of Customs,  later had ordered unconditional release of goods and yet the goods had  not been released.  It is under these circumstances and in  view  of the specific undertaking given by  the  customs authorities, this Court held that from the date of detention of  the  goods  till the customs authorities  intimated  the importer,  the  importer  would not be required to  pay  the demurrage  charges.  But in that case even subsequent to the orders  of the customs authorities on a suit being filed  by one  of  the  partners  of the importer-firm,  an  order  of injunction  was  issued and, therefore it was held that  for that  period,  the importer would be liable for  paying  the demurrage and container charges.  The judgment of this Court in  Sanjeev Woolen Mills, therefore, was in relation to  the peculiar  facts and circumstances of the case and the  Court had  clearly observed that the order in question is meant to do  justice to the importer, looking to the totality of  the

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circumstances and the conduct of customs authorities.  Thus, we  see no inconsistency between the ratio in Sanjeev Wollen Mills  and  the Judgment of this Court in Grand Slam.   That apart,  the  judgment in Grnd Slam was a three  judge  bench judgment.   In the case in hand, as has already been  stated earlier,  the  earlier  judgment of Delhi High  Court  dated 9.9.94  in  C.W.P.   No.  1604/91, has become  final,  which entitles  the  importer  to get the goods  released  without payment  of  the  detention and demurrage charges.   In  the contextual  facts, notwithstanding the judgment of the  High Court,  the  goods  not having been released,  the  impugned order  and  direction  dated 18.1.99, cannot be held  to  be infirm  in  any manner.  In the absence of any provision  in the  Customs Act, entitling the customs officer to  prohibit the  owner of the space, where the imported goods have  been stored from levying the demurrage charges, levy of demurrage charges  for non-release of the goods is in accordance  with the  terms and conditions of the contract and as such  would be  a  valid levy.  The conclusion of the High Court to  the effect  that  the  detention  of the goods  by  the  customs authorities was illegal and such illegal detention prevented the   importer  from  releasing   the  goods,  the   customs authorities  would be bound to bear the demurrage charges in the  absence of any provision in the Customs Act,  absolving the  customs  authorities  from   that  liability.   Section 45(2)(b)  of  the  Customs Act cannot be construed  to  have clothed  the customs authorities with the necessary  powers, so  as  to  absolve  them of the  liability  of  paying  the demurrage  charges.   In the aforesaid premises, we  see  no infirmity  with the directions given by the Delhi High Court on  18.1.99.   The  goods in question, having  already  been directed  to  be  released,  without   the  payment  of  the demurrage  charges,  the  importer must have got  the  goods released.   Having  regard  to  the fact  situation  of  the present  case, it would be meet and proper for us to  direct the  Shipping  Corporation and Container Corporation, if  an application is filed by the customs authorities to waive the demurrage charges.  The appeal is disposed of accordingly.

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