Page 231 - ELT_1st September 2020_Vol 373_Part 5

2020 ] MATE (INDIA) PVT. LTD. v. COMMR. OF CUS., INLAND CONTAINER DEPOT 669

the goods by the Customs authorities. Even in a case in which the
seizure is entirely unjustified, the importer would, in the first in-
stance, have to pay demurrage, to the custodian and, thereafter, pur-
sue, with the Customs authorities, for obtaining reimbursement of
the amount.
(vi) The only exception, to the application of the above principles,
is in a case in which the custodian himself is guilty of uncon-
scionable delay, or of continuing to hold onto the goods with-
out good reason or authority.
(vii) Rates of demurrage were deliberately made prohibitive, so as
to discourage importers from consigning goods to the custody
of the Port Trust or other custodian, and to avoid congestion
at the port.
xxx xxx xxx
136. We deem it appropriate to add, here, that the Customs authorities,
while exercising their power of search, seizure and investigation, are essen-
tially discharging sovereign functions. A reasonable amount of time is expected
to be expended in this process, and the mere fact that, by reason of the investigative
exercise conducted by the Customs authorities, it has not been possible for the im-
porter to clear its goods, cannot, ipso facto, lead to transference of liability to pay
demurrage, to the Customs authorities.”
23. A bare reading of the above makes it abundantly clear, that the Cus-
toms authorities cannot direct waiver of demurrage, which can only be done by
the custodian (the CCI here). Moreover, merely because the Customs authority
expends a reasonable time in dispensation of their sovereign functions of search,
seizure and investigation, cannot lead to transference of liability to pay demur-
rage, to the Customs authorities.
24. The other issue that raises before us, is, this petitioner is also in
search of refund of excess Customs duty which is paid at Rs. 2,03,987/-, whereas
no such refund application has been preferred by the petitioner prior to this writ
and has neither approached the respondents as per the provisions of the Cus-
toms Act, 1962. In light of this, we are not inclined to exercise our extraordinary
jurisdiction under Article 226 of the Constitution of India, when an alternative
efficacious remedy for obtaining the refund claim is clearly prescribed in the
statute. The petitioner cannot circumvent the statutory provisions by invoking
the writ jurisdiction. Moreover, sub-section (3) of Section 27 of the Customs Act,
1962, clearly suggests that, the claim for refund must be made in accordance with
sub-section (2) of Section 27 of the Customs Act, 1962. Hence, we are not inclined
to exercise our writ jurisdiction regarding the petitioner’s claim for refund.
25. In Assistant Collector of Central Excise, Chandan Nagar, West Bengal v.
Dunlop India Ltd. and Ors. [(1985) 1 SCC 260 = 1985 (19) E.L.T. 22 (S.C.)]. the three-
judge Bench of the Supreme Court, held that :
“3. Article 226 is not meant to short circuit or circumvent statutory procedures,
it is only where statutory remedies are entirely ill suited to meet the de-
mands of extraordinary situations, as for instance where the very vires of
the statute is in question or where private or public wrongs are so inextri-
cably mixed up and the prevention of public injury and the vindication of
public justice require it that recourse may be had to Article 226 of the Con-
stitution. But then the Court must have good and sufficient reason to by-
pass the alternative remedy provided by statute. Surely matters involving the
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