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TMI Blog2016 (12) TMI 698X X X X Extracts X X X X X X X X Extracts X X X X ..... mended Bill of Lading, other than the Petitioner and consequently, to pass order to deliver the cargoes, which are kept in the Second Respondent/warehouse Corporation in Bill of Lading No.(1) COSU6095467990-14.4.2016-4 Containers - 64.500MT - 860 bags (2)COSU6095468160-14.4.2016-8 Containers - 129.375MT - 1725 bags (3) COSU6095468170-14.4.2016-3 Containers - 48.000MT - 640 bags and (4) COSU6095468180 -14.4.2016-3 Containers - 48.375MT - 645 bags, in all 18 Containers-290.250 MT - 3870 bags to the Petitioner only, according to law, based on his representation, dated 08.05.2016. 2.Resume of Writ Facts:- 2.1.According to the Petitioner, it is one of the importers of Raw Cashew nuts in shell from Tanzania and entered contract with 4th Respondent, wherein 'Master Distributor Limited' is one of the seller and shipper to them and issued a proforma Bill of Lading. The aforesaid party had agreed to deliver a larger extent of Six thousand Nine hundred and Sixty Metric Tons of Raw Cashew nuts as per contract and the Petitioner had almost received the considerable quantum of Cargo. However, there is a remaining cargo of 290.250 M.Ts dispatched through Port of Origin Tanzania and nece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est cashew Traders Kollam, till then there was no amendment in the name of Third Respondent. The grievance of the Petitioner is that the shipper had not come forward to hand over the 'Original Bill of Lading' to clear the cargo. The obvious intention is to change the name in original bill of lading and to sell the cargo at the increased rate to some other third party. As such, the Petitioner made a representation to the state authorities to stop the delivery of the cargo to any third parties by producing 'unlawful' amended Bill of lading etc. and also asked to restrain the further movement of the cargo without their consent and concurrence. 2.6.The cargo is perishable in nature and therefore it is to be cleared from Customs Ware House. The Petitioner is the real legal owners of the cargo and as such, it may be permitted to move the cargo. The Petitioner is having a good case and balance of convenience. Indeed, the cargo had reached Tuticorin on 29-04-2015 and the Petitioner is to pay heavy cost and demurrage to both 2nd and 3rd Respondents. 3.Gist of contents of the Third Respondent's Counter:- 3.1.The 18 containers of Raw Cashew Nuts of Tanzaia Origin arrive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing date was 14.04.2016 i.e. the date of sailing of vessel Ex Port of Loading. As per the Third Respondent's Port of Loading Agent, Shipper M/s.Master Distributor had approached their Port of Loading Agent and requested for change of new consignee as M/s.Glory cashews on 03.05.2016 and as per Shipper M/s.Master Distributor and their Port of Loading Agent confirmation new Original Bill of Lading was released on 09.05.2016 to the name of M/s.Glory Cashews with shipped onboard and Bill of Lading date as 14.04.2016. Therefore, the 'Original Bill of Lading' was released only on 09.05.2016 and not on 14.04.2016 itself. It is wrongl to mentioned that 'Original Bill of Lading' was prepared on 14.04.2016 itself, but as per records it is only on 09.05.2016. In fact, without submitting the 'Original Bill of Lading' in the Third Respondent's office, the Third Respondent could not start processing amendment and that was informed to the Third Respondent's Port of Loading Agent at Dar Es Salam, Shipper M/s.Master Distributor and Amended Original Bill of Lading Consignee M/s.Glory Cashews. 3.6.The Third Respondent had informed the Port of Loading Agent that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arty, through the bank or directly after receipt of consideration for the goods, the title/ownership on the cargo passes on to the consignee. 4.4.The original consignee/Glory Cashew had already made interim payment to the Fourth Respondent/Master Distributors Limited and the said Respondent, as Shipper had released the Original Bills of Lading to the consignee/Glory Cashews. Therefore, 'Glory Cashews' is now the Original owner of the cargo, which is legally entitled to receive the cargo from the Port on surrendering Original Bill of Lading and production of delivery order from the carrier/shipping Company. 4.5.The real intention of the Petitioner is to stop delivery of the cargo to its rightful owners and to cause hardship and loss to the Fourth Respondent. The Fourth Respondent is one among the Directos of another Company viz., 'Sparkle Way Limited', which had a contract with the 'Petitioner/Best Cashew Traders' to supply Raw Cashew. The Petitioner on 14.08.2015 had entered into a Memorandum of Understanding for the supply of 6000 MT of Raw Cashews with 'Sparkle Way Limited'. Based on the said MOU, the Sparkle Way Limited supplied 4750 MT of cashe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corin Port incurring heavy demurrage, ground rent etc. Further, if at all there is no further dispute between the parties, the same is to be adjudicated before the appropriate Civil Court and this Court shall not invoke its writ jurisdiction to settle a private complaint/civil dispute between two parties. 4.9.The Consignee/Glory Cashew holds the original Bills of Lading to establish their ownership and they are willing to surrender the original Bills of Lading and take delivery of the cargo as per conditions, to be fixed by the Court. The cargo is of perishable in nature and the same was loaded in the containers on 22.03.2016 and shipped on14.04.2016 and it is lying in the Port of Tuticorin for more than one month. Since the Consignee/Glory Cashews is holding the original Bills of Lading, the balance of convenience is in its favour to take delivery of the cargo. 5.The Petitioner's Contentions:- 5.1.According to the Learned counsel for the Petitioner, in the instant case, the Petitioner as an importer of 'Raw Cashew Nuts' in Shell from Tansania had entered into a contract with the Fourth Respondent, wherein the Master Distributor is one of the seller and shipper to it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel for the Petitioner referes to the ingredients of Section 30(3) of the Customs Act 1962, which mentions that if the proper officer is satisfied that the import manifest or import report is in any way incorrect or incomplete and that there was no fraudulent intention, he may be permitted to be amended or supplemented. He would further submit that IGM can be amended as per Sections 30(3) and Section 149 of the Customs Act, 1962. In this connection, the Learned counsel for the Petitioner proceeds to state that the 'Import from Tansania' attracts import duty and refers to the Book Customs Law Mannual, with Special Economic Zones of R.K.Jain in 35th Edition (2008), 7.133 and 7.134, wherein M.F.(D.R.) Circular No.13/2005-Cus, dated 11.03.2005, deals with instructions regarding the Import Manifest ? Incomplete or incorrect filing of. In the said circular, the major amendment (iv) relates to 'Change the Importer's/Consignee name'. Also, at paragraph Nos.3 and 4, it is inter alia observed as follows:- 3.... The major amendments can only be made with the prior permission of proper officer and adjudication of the same. It has b een further decided that if th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntainers consisting of 290.250 Mts Raw Cashews were despatched from Dar Es Salam on 14.04.2016 and that the cargo was loaded with the Transport documents proforma Bill of Lading in the name of M/s.Best Cahsew Traders, Kollam, Kerala. Further in the said third party affidavit, it was mentioned that '... The said Mr.Vinod Varghese misrepresenting Indian Cashew Trader and win their confident and changed the bill of lading in another party's name M/s.Glory Cashew and thereby, cheating the entire business man in India. On checking with the shipping company, they came to know that M/s.Bollore Logistics located at Tanzania, colluded with above person changed the consignee name as M/s.Glory Cashew instead of Best Cashew.' 5.9.Finally, at paragraph No.7 of the affidavit, the third party Mr.N.C.Paul, had stated that M/s.Best Cashew Traders, Uliyacovil Post, Kollam -691 019, Kerala is the real consignee and not M/s.Glory Cashew, Aanaiyadi, Kollam, Kerala. 5.10.The Learned counsel for the Petitioner contends that in the present case, the Petitioner's legal right under Article 14, 19 and 21 of the Constitution of India are violated. Also, the Learned counsel for the Petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to apprehend him. It is further submitted that the first accused is highly influential and there is every chance of influencing the witnesses and tampering with the evidence if he is released on bail.? 5.11.The Learned counsel for the Petitioner submits that the writ Petitioner's good will is affected and his legal right is infrinched and inthe instant case, the fraud is exercised and the substantial amount is lost by reexport to the exchequer. That apart, the Deputy High Commissioner of High Commission of India/Dar Es Salam, Tuticorin in reference No.Dar/Com/212/3/2015, dated 18.05.2015 had mentioned about the incidents of cheating/fraud against Indian Companies/businessmen in the field of Cashew Nuts and advised the Indian businessmen to be extra cautious of the Tanzanian Company called M/s.Acclimatise International Group. 6.The Submissions of the Respondent No.1:- The Learned Senior Standing Counsel for the First Respondent states that the dispute in the present case is a private dispute and that the Original Bill of Lading is in the name of Petitioner in WMP(MD)No.7714 of 2016 and further, the Original Import General Manifest is in the name of Petitioner and in fact, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce to prove his title or ownership over the cargo as claimed in the writ petition. Therefore, it is contended that the writ petition is to be dismissed in limini, since the same is not maintainable. 9.2.The Learned Senior counsel for the Fourth Respondent takes a plea that the documents produced by the Petitioner are just copy of a draft proforma Bill of Lading (which is normally prepared by the Importer or their Customs House Agent not signed by the carrier and not issued by the carrier in carrier's name) and as such, the proforma Bill of Lading is not sealed by the carrier and the same cannot cannot be considered as a Bill of Lading as per Indian Bill of Lading Act. 9.3.The Learned Senior counsel for the Fourth Respondent projects an argument that in the instant case, all the four Bills of Lading (originals) produced or issued by the carrier/shipping line indicating the Fourth Respondent/Master Distributor as Shipper and Glory Cashews as the Consignee of the cargo. Moreover, the writ Petitioner is not a party to the fourth Original Bills of Lading, which is a basic document to establish the ownership/title. 9.4.The emphatic stand of the Fourth Respondent is that a mere pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le as per Section 30(3) r/w Levy of Fees (Customs Documents) Regulations, 1970. 9.7.The Learned Senior counsel for the Fourth Respondent submits that the First Respondent is obliged to amend the name of the Consignee/Glory Cashew in the IGM and substitute the name of the Petitioner with that of Original Consignee/Glory Cashew (original holder of Bill of Lading and owner of cargo) for the shipment in question. 9.8.The Learned Senior counsel for the Fourth Respondent cites the Book on 'LAW OF CARRIAGE (AIR, LAND AND SEA), wherein at Chapter 4, at paragraph No.3, under the Caption 'Bill of Lading as Document of Title', it is mentioned as under:- A bill of lading is a document of title; it is a symbol of the goods; it represents the goods themselves. It is a symbol of the right to property in the goods specified in the bill. Its possession is equivalent to the possession of the goods themselves, and its transfer being a symbolic delivery of the goods themselves has by mercantile usage the same effect as an actual delivery (vide HALSBURY'S LAWS OF ENGLAND, Vol.26, 146-47).? 9.9.The Learned Senior counsel for the Fourth Respondent cites the Book on 'Bills of ladin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntioned as follows:- The ocean bill of lading is the only document of title to goods at common law presently recognised under the English common law. ... It is often said that the bill of lading is recognised by the common law as a document of title to goods by reason of the custom of merchants established in Lickbarrow v. Mason ((1787) 2 T.R. 63, 69).? 9.14. Besides the above, the Learned Senior counsel for the Fourth Respondent refers to the Book on 'The Law of Carriage of Goods' by H.K.Saharay, 2013, wherein in Section 1, at page 443, it is mentioned that ?in the decision in E.CLEMENS HORST Co. v. BIDDELL BROS ((1912) AC 12), it is held by the House of Lords that the possession of the bill of lading was in law possession of the goods and that under the c.i.f. Contract the seller was entitled to payment on shipping the goods and tendering to the buyer the documents of title.? 9.15.The Learned Senior counsel for the Fourth Respondent cites the decision in COLLIS LINE PRIVATE LTD. v. NEW INDIA ASSURANCE CO. LTD. Reported in AIR 1982 Ker. 127, wherein at paragraph no.4, it is observed as follows:- The bill of lading which is governed by the Indian Carriage of Goods by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) of the Customs Act read with the Levy of Fee (Customs Documents) Regulations, 1970, allows the proper officer to permit an IGM to be amended or supplemented, on payment of prescribed fees, if he is satisfied that there is no fraudulent intention. The Central Board of Excise and Customs has provided for two broad categories of amendments Major and Minor. The major amendments include changing the Importers/consignees name. Section 32 stipulates that no imported goods, required to be mentioned in an import manifest or import report, shall, except with the permission of the proper officer, be unloaded at any customs station unless they are specified in such manifest or report for being unloaded at that customs station. In the exercise of the powers conferred by Section 157 of the Customs Act, the Central Board of Excise and Customs made the Import Manifest (Vessels) Regulations, 1971. Regulation 3 thereof relates to the import manifest and, under sub-regulation (1) thereof, every import manifest shall (a) be delivered in duplicate; (b) cover all the goods carried in a vessel; and (c) consist of, among others, a cargo declaration in Form III. Regulation 5 prescribes the manner of de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complete, and that there is no fraudulent intention, he may permit it to be amended or supplemented. As against this, if one turns to the public notice dated 14th January, 2010, the policy decision taken by the Revenue is only by way of gude-line and the public notice issued by the authorities covers only the part of the problem faced by the department. The guide-lines mentioned therein is not exhaustive and does not cover all contingencies falling under Sub-Section (3) of Section 30 of the Customs Act. The proper Officer is bound to consider the case of the Petitioner independent to the guide-lines. The Apex Court, in the case of Indian Railway Construction Co. Ltd. V. Ajay Kumar MANU/SC/0166/2003 : 2003 (4) SCC 579 has clearly laid down that whenever there is a failure to exercise discretion under discretionary power conferred by the statute, then, it is permissible for the Court to take note of such inaction and give a direction to consider the case.? 10.The Contentions of the Fifth Respondent:- 10.1. It is the submission of the Learned Senior Counsel for the Fifth Respondent that Section 30 of the Customs Act, specifies filing of Import General Manifest immediately or soon be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther than the Petitioner etc. 12.2. At this stage, this Court on perusal of the representation of the Petitioner dated 08.05.2016, addressed to the First Respondent and two others, shows that the Petitioner had averred among other things that the Fourth Respondent/Sparkle Way Limited tries to change the name of the consignee from Best Cashew Traders to Glory Cashews of SNP VII/017, Sooranadu North, Anaiyadi Post, Kollam, Kerala and that the transaction is illegal and against the prevailing International Law. Moreover, it was also mentioned that the Petitioner Company had framed the entire cargo value and further that being the Shipper Forwarding Agent, they deliver the cargo only to the persons, in whose name IGM is prepared M/s.Cosco India Shipping Pvt. Ltd. (Third Respondent) etc. 12.3. It is the plea of the Fourth Respondent that the Petitioner has no valid title over the cargo and in fact, the Petitioner has produced only a copy Draft Proforma Bill of Lading and in fact, without proof of his title or ownership over the cargo, the writ filed by him is not maintainable. The categorical case of the Fourth Respondent is that the Petitioner cannot demand the cargo, over which, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir importation and the time when they are cleared for home consumption, includes any owner or any person holding himself out to be the importer.? 12.8. As a matter of fact, Section 2(34) deals with as follows:- proper officer?, in relation to any functions to be performed under this Act, means the officer of customs who is assigned those functions by the Board or the Commissioner of Customs.? 12.9. It is to be noted that Section 2(1) of the Customs Act, does not define 'Adjudication'. Moreover, the adjudicating process is defined as 'Method of adjudicating factual dispute, employed generally in administrative proceedings in contrast to Judicial proceedings', as opined by this Court. At this juncture, a perusal of Section 30(3) of the Customs Act, 1962, indicates that the Master of a vessel has a duty to deliver the import manifest within 24 hours after arrival of the ship at Customs Station. Also, that in terms of Section 30(3) of the Customs Act, if the proper officer is satisfied that the import manifest or import report is in any way incorrect or incomplete and that there was no fraudulent intention, then, he may permit it to be amended or supplemented. 12.10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and therefore, a proper application was submitted by the carrier before the authority/Customs to amend IGM, which is permissible in terms of Section 30(3) r/w Levy of Fees (Customs Documents) Regulations, 1970. 12.14. At this stage, this Court significantly points out that in general, disputed questions of facts, are not to be investigated in a proceeding under Article 226 of the Constitution of India especially when an effective, efficacious and alternative remedy is available to the parties. Undoubtedly, the power under Article 226 of the Constitution is a discretionary one, yet, the writ Court is to act with self imposed, limitations, as a matter of prudence and policy. There is no dispute that the power under Article 226 of the Constitution is one of 'Judicial Review'. As an ordinary Rule, the jurisdiction under Article 226 of the Constitution of India, cannot be pressed into service for settling the private disputes or for deciding disputes under general Law, Civil or Criminal Law are very much available. Moreover, after a contract was entered into, the rights of parties shall be determined only by the terms of contract, even though one of the parties is a statutory ..... 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