2016 (12) TMI 698 - HC - Customs

Maintainability of petition - mixed question of law and facts - import of goods on the basis of illegal amended Bill of Lading - Raw Cashews - Held that - It cannot be forgotten that when a right or liability is created by a statute, that itself prescribes a remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy, as opined by this Court. Further, just because the statutory remedy is an onerous one, without exhausting the same, a litigant is not entitled to file a writ petition - In the upshot of qualitative and quantitative discussions and also this Court, keeping in mind of an essential fact that the Petitioner makes a claim for the cargo in question based on proforma Bill of Lading and when the claim of the Petitioner is very much disputed by the Respondent Nos.4 and 5, and further when the Sixth Respondent falls in line with that of the Petitioner to the effect that the writ Petitioner is only entitled to get the cargo and thereby its Firm is entitled to get delivery of the cargo, pursuant to High Sea Sale Agreement, dated 21.04.2016 and that apart, when the Fourth Respondent comes out with the plea that the IGM can be amended as per Section 30(3) r/w Levy of Fees (Customs Documents) Regulations, 1970, then, this Court is of the considered view that the disputes between the parties are only to be settled before the Adjudicating Authority/proper officer (Fact Finding Authority) under the Customs Act. In fact, the rival claims/disputes between the parties in the instant case, which centres around on mixed questions of Facts and Law, cannot be investigated/not to be gone into by a writ Court under summary proceedings. Viewed in that perspective, this Court holds that filing of writ petition by the Petitioner is per se not maintainable. Consequently, writ petition fails. Petition dismissed - Liberty granted to the respective parties to approach the Adjudicating Authority/proper officer under the Customs Act, 1962 or to seek appropriate remedies under the General Law, Civil Law or Criminal Law and to seek redressal of their grievances, if they so desire/advised.

Summary

Issues Involved:
1. Validity of the Petitioner's Title over the Cargo.
2. Legality of the Amendment of the Bill of Lading.
3. Jurisdiction and Maintainability of the Writ Petition.
4. Appropriate Forum for Dispute Resolution.

Detailed Analysis:

1. Validity of the Petitioner's Title over the Cargo:
The petitioner claimed to be the importer of raw cashew nuts from Tanzania, having entered into a contract with the fourth respondent. The petitioner argued that they had paid for the cargo and that the bill of lading was issued in their name. However, the fourth respondent contended that the petitioner did not possess valid title over the cargo, producing only a draft proforma bill of lading, which is not recognized as a valid document under the Indian Bill of Lading Act. The fourth respondent asserted that the original bills of lading named "Glory Cashews" as the consignee, making them the rightful owner of the cargo.

2. Legality of the Amendment of the Bill of Lading:
The petitioner alleged that the fourth respondent attempted to change the consignee's name from "Best Cashew Traders" to "Glory Cashews" illegally. The fourth respondent argued that the petitioner's name was mistakenly entered in the Import General Manifest (IGM) and that they had applied to rectify this error with the customs authorities, which is permissible under Section 30(3) of the Customs Act, 1962, and the Levy of Fees (Customs Documents) Regulations, 1970. The court noted that the proper officer could permit amendments if there was no fraudulent intention.

3. Jurisdiction and Maintainability of the Writ Petition:
The court highlighted that disputed questions of fact are generally not suitable for adjudication under Article 226 of the Constitution, especially when an effective alternative remedy is available. The court emphasized that the jurisdiction under Article 226 is discretionary and should not be used to settle private disputes or enforce contractual rights. The court opined that the petitioner should seek redressal through the appropriate statutory authorities or civil courts.

4. Appropriate Forum for Dispute Resolution:
The court concluded that the disputes involving mixed questions of fact and law should be resolved by the adjudicating authority or proper officer under the Customs Act. The court held that the writ petition was not maintainable and dismissed it, granting liberty to the parties to approach the adjudicating authority or seek remedies under general, civil, or criminal law.

Conclusion:
The writ petition was dismissed as the court determined it was not the appropriate forum for resolving the disputes, which involved complex factual and legal issues. The parties were advised to seek resolution through the adjudicating authority under the Customs Act or other appropriate legal avenues.