9911796707
TMI Blog2016 (12) TMI 698X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 Containers - 129.375MT - 1725 bags 3.COSU6095468170 - 14.4.2016 - 3 Containers - 48.000MT - 640 bags 4.COSU6095468180 - 14.4.2016 - 3 Containers 48.375 MT - 645 bags TOTAL - 18 Containers- 290.250MT- 3870 bags 2.2.The categorical case of the Petitioner is that it had already paid amount through bank for 6846 Mts. So far, they had received 5534.828 MT only. In respect of the remaining quantity of 1311.172 Mt., the present 18 containers consisting of 290.250 MT of cargo is dispatched. As such, they had paid the entire amount for the cargo in question. It is further represented on bealf of the Petitioner that on receipt of consideration value only, they had released the Bill of Lading in the Petitioner's name viz., Best cashew Traders Kollam. 2.3.As a matter of fact, the cargo was laden on Board at Port of Origin DAR ES SALAAM, TANZANIA on 14.04.2016 and reached the delivery/destination port Tuticorin on 29-04-2016 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent's Counter:- 3.1.The 18 containers of Raw Cashew Nuts of Tanzaia Origin arrived destination Port Tuticorin on 29.04.2016. For the import of shipment, the Third Respondent had filed 'Import General Manifest (IGM) with Tuticorin Customs on 28.04.2016 in advance, which is the prevailing procedures as per manifest received from Transhipment Port Colombo to the name of consignee M/s.Best Cashew Traders-Kollam (The writ Petitioner). On 09.05.2016 the Consignee M/s.Best Cashew Traders-Kollam had served a copy of letter to the Third Respondent office that they lodged a complaint at Kollam East Police Station on 02.05.2016 against the Fifth Respondent and on 18.05.2016, their Port of Loading agent at Dar Es Salam had informed that they had changed consignee as M/s.Glory Cashews as per Shipper M/s.Master Distributors request on 03.05.2016 and release the new original Bills of Lading on 09.05.2016, which was confirmed by the shipper M/s.Master Distributors. 3.2.It transpires that (through e-mail) on 18.05.2016, the Third Respondent's Port of Lading Agent at Dar Es Salam had asked them about the formalities required to amend the Import General Manifest (IGM) filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Consignee M/s.Glory Cashews. 3.6.The Third Respondent had informed the Port of Loading Agent that the dispute is between the Shipper M/s.Master Distributor and IGM Consignee M/s.Best Cashew and amended Original Bill of Lading Consignee M/s.Glory Cashew and hence, they, as carrier agent, are not responsible for the time delay, cargo damage, demurrage, detention, loss and towards any claim. The Third Respondent has a carrier agent as per the regulation, whoever is submitting the original documents with it, by the proper consignee, cargo shall be released and submit their request to the First Respondent for amendment if required for approval based on Original Bill of lading submitted in their office. The Third Respondent submitted its request to the First Respondent for approval of amendment and further processing on 10.06.2016 based on Original Bill of Lading submitted in their office, which was acknowledged by Customs vide No.4319/10.06.2016 and that the documents are pending before the First Respondent. 4.The Contents of the Fourth Respondent's Counter:- 4.1.The Petitioner has no valid title over the cargo or had produced any supporting evidence/document to show that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w Cashews with 'Sparkle Way Limited'. Based on the said MOU, the Sparkle Way Limited supplied 4750 MT of cashew to the Petitioner as on 31.01.2016. Also, on 05.02.2016, the Petitioner and the Sparkle Way Limited entered into another MOU, whereby the Petitioner had acknowledged the receipt of 4750 MT of Cashew and the Sparkle Way Limited had agreed to supply the balance of 1150 MT of cargo to the Petitioner. As per second MOU, the Sparkle Way Ltd., (through Fourth Respondent) shipped the balance cargo to the Petitioner. But the Petitioner had not mentioned about the MOU entered with Sparkle Way Limited as regards the delivery of their cargo. One of the sale agreement, bearing No.PL/506/2015, dated 01.11.2015 entered into with Sparkle Way Limited and the Fourth Respondent for the delivery of cargo was only produced before this Court, with a view to obtain an order in their favour. 4.6.There is no agreement between the Fourth Respondent and the Petitioner for the delivery of any additional cargo for 6900 MT, as stated by the Petitioner. In fact, the agreement entered into between the Petitioner and the Sparkle Way Limited is for the delivery of 6000 MT and there is no valid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ania had entered into a contract with the Fourth Respondent, wherein the Master Distributor is one of the seller and shipper to it and issued a Proforma Bills of Lading. It is also represented that as per the contract, it was agreed to deliver a larger extent of 6960 Mt 'Raw Cashew Nuts' and that the Petitioner is to receive the remaining cargo of 290.250 MTs despatched through Port of origin Tansania. 5.2.The Learned counsel for the Petitioner submits that the Petitioner had paid the amount through bank for 6846 Mts and they had received 5534.828 MT. Only for the balance quantity of 1311.172 MT, the present 18 containers consisting 290.250 MT of cargo was despatched and further that on receipt of consideration value only, the 'Bill of Lading' in Petitioner's name viz., Best Cashew Traders, Kollam, was released. 5.3.Added further, the Learned counsel for the Petitioner contends that the cargo was laden on Board at Port of Origin DAR ES SALAAM, TANZANIA on 14.04.2016 and reached the delivery/destination port Tuticorin on 29-04-2016 and the cargo was cleared from the port and that that Third Respondent/Cosco India Shipping Private Limited, Tuticorin submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 there is incomplete or incorrect filing of import report or import manifest by the person who is required to file the import manifest or import report as per the provision of sub-section (1) of Section 30 of the Customs Act, 1962, penalty should invariably be administered if the same is not corrected within permissible time limit, as per the legal provisions considering such filing as improper filing. The cases should be decided immediately, if required, using waiver of show cause notice and written defense reply. 4.The above instructions may be brought to the notice of the Trade immediately through appropriate Public Notice.? 5.7.Likewise, the Learned counsel for the Petitioner refers to the Import Manifest Circular in M.F.(D.R.)Circular No.44/2005-Cus, dated 24.11.2005, wherein at paragraph Nos.3 and 4, it is observed as under:- 3.The matter was re-examined. It has been decided by the Board that all amendments to the Import General Manager (IGM) may be considered on the basis of the provisions contained in Section 30(3) of the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, 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 brings it to the notice of this Court that on 02.06.2016, in B.A.No.3658 of 2016 (Crime No.1476 of 2016 of East Police Station, Kollam) between VINOD VARGHESE v. STATE OF KERALA represented by Public Prosecutor, on the file of High Court of Kerala, the Circle Inspector of Police, Kollam East had filed a report, wherein at paragraph Nos.4 to 6, it is among other things, mentioned as follows:- 4. ... But after drawing the Bill of Lading in the name of the complainant, the first accused with the help of second accused forged the Bill of Lading by changing the naem of consignee in the name of one Johnson, S/o.Jose, Proprietor of Gloria Cashew and received an amount of ₹ 78,000/- US Dollar and again forged the Bill of Lading in the name of one Anzar Babu, S/o.Abdul Rasheed, Proprietor Ideal Cashew, Kollam by promising to import Raw Cashew Nuts to them from Thanzaia. Since the consecutive forgery committed by the accused amounted to serious offence punishable under Section 420 of Indian Penal Code, I submitted another report to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, the First Respondent is willing to abide by this Court's order. 7.The Second Respondent's Contentions:- According to the Learned counsel for the Second Respondent, 18 containers are lying in its warehouse at Tuticorin and as per Section 63 of the Customs Act, 1962, it is entitled to 'Payment of Rent' and warehouse charges. In fact, the writ Petitioner and the Fifth Respondent claim to be the owner. 8.The Submissions of the Respondent No.3:- 8.1.According to the Learned counsel for the Third Respondent, the writ Petitioner on 20.05.2016, in WMP(MD)No.7404 of 2016 in W.P.(MD)No.9351 of 2016 had obtained an interim direction restraining the Respondent Nos.1 and 3 not to release the cargo to anyone on any amended Bills of Lading, in which, the Third Respondent is a party. The Learned counsel for the Third Respondent contends that as per Third Respondent's Port of Loading Agent, Shipper M/s.Master Distributor and the Third Respondent's Port of Loading Agent confirmation of new original Bills ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 production of a 'Proforma Bill of Lading' does not enable the Petitioner to claim title over the case and the holder of 'Original Bills of Lading' is considered as owner of the goods inasmuch as the original Bill of Lading is the evidence of contract between the parties in the Bill of Lading and treated as evidence of title. 9.5.The Learned Senior counsel for the Fourth Respondent contends that the Fourth Respondent is one among the Directors of another Company viz., 'Sparkle Way Limited', which had a contract with the Petitioner/Best Cashew Traders to supply Raw Cashews. Also that the Petitioner had entered into a Memorandum of Understanding dated 14.08.2015 for supply of 6000 MT of Raw Cashew with Sparkle Way Limited. It is further represented on behalf of the Fourth Respondent that based on the Memorandum of Understanding, Sparkle Way Limited supplied 4750 MT of Cashew to the Petitioner on 31.01.2016. Moreover, on 05.02.2016, the Petitioner and Sparkle Way Limited entered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 lading in International law and Practice' of Mr.T.K.Thommen, wherein at page No.26, it is observed as follows:- In practice, however, the terms of the bill of lading govern the contractual relations between the shipowner and the shipper, and the booking notes generally state that the carrier's regular forms of bill of lading shall be used and all the terms thereof shall form part of the contract. The bill of lading assumes the character of conclusive evidence once it has passed into the hands of a consignee or endorsee, and evidence may not be given which varies or contradicts it (vide decision of the English Court in Leduc v. Ward, (1888) 20 QBD 475). ...? 9.10.Also, at page No.27 of the said Book, it is mentioned as follows:- A bill of lading is regarded as the symbol of the goods mentioned in it. An endorsement of the bill of lading while the goods are in the hands of the carrier may confer upon the endorse all the rights and liabilities of the shipper as if the contract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Sea Act, 1925, is an acknowledgement of the receipt of the goods mentioned therein. It evidences the term of the contract of affreightment made between the shipowner and the shipper. Bill of lading which is a symbol of the goods covered by it is regarded by the custom of merchants as a document of title. ?Carriage of goods' covers the period from the time when the goods are loaded on to the time when they are discharged from the ship. ...? 9.16.The Learned Senior counsel for the Fourth Respondent relies on the Judgment dated 23.02.1966 between CHHAGANLAL SAVCHAND v. COMMISSIONER OF INCOME TAX, BOMBAY, wherein at paragraph No.17, it is observed as follows:- It would be cleared that in India the bill of lading in the commercial world is used in the ordinary course of business as proof of possession or control of the goods themselves, and the possessor of the bill of lading is taken in the commercial world as a person authorised to transfer these goods either by making an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereof, 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 declaring cargo and, under sub-regulation (1)(a) thereof, the cargo declaration shall be delivered in separate sheets in respect of each of the categories of cargo, viz, the cargo to be landed. The cargo declaration form contains, among others, the name of the ship, the port of loading, the bill of lading number, the number and kinds of packages, description of goods, name of the consignee/importer, the date of presentation of the bill of entry, the name of the customs house agent etc.? (c)In the Final Order No.A/54/2015-WZB/SMB in Appeal No.C/88253/2014- Mum, dated 02.01.2015, between JAI DURGE TRADING Co. v. COMMISSIONER OF CUS. (IMPORT) (VIDE MANU/CM/0039/2015), at paragraph No.3.1, it is observed as follows:- Section 149 of the Customs Act provides for amendment of IGM as per the discretion of the proper officer after the IGM has been presented. In the present case, the original importer's name was indicated in the IGM as M/s.Jai Durge Trading Co. However ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.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 before the vessel is berthed in the Port and in fact, the writ petition filed by the Petitioner is not maintainable before this Court and it is for the Petitioner to seek appropriate remedy before the concerned statutory authorities. Further, it is represented on behalf of the Fifth Respondent that the writ Petitioner is making an endeavour to stall the proceedings by producing the 'Proforma Bill of Lading', in which, the Shipper had not signed. 10.2. The Learned Senior Counsel for the Fifth Respondent contends that the Petitioner after seeking redressel on his grievance before the authorities concerned, thereafter, is to look into the other options available under the Customs Act, 1962 and before that, the filing of the writ petition is not per se maintainable. 11.The Submissions of the Sixth Respondent:- 11.1.The Learned counsel for the Sixth Respondent submits that the Fourth Respondent is not competent to amend any original Bill of Ladi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 has no legal right and in fact, the Petitioner's name was wrongly entered in the IGM instead of the name of the consignee/Glory Cashews by mistake and therefore, the proper application was submitted by the carrier before the authority/Customs to amend the IGM, which is permissible under Customs Law, as per Section 30(3) r/w Levy of Fees (Customs Documents) Regulations, 1970. Apart from that, the Fourth Respondent before this Court has taken a plea that the First Respondent/Customs is obliged to amend the name of Consignee/Fourth Respondent in the IGM and substitute the name of the Petitioner with that of the original consignee/Fourth Respondent (Original holder of Bill of Lade and owner of cargo) for the above shipment and if there is any further dispute between the parties, the same will have to be raised before the appropriate Civil Court. 12.4.The Fifth Respondent has taken a stand in the present writ petition to the effect that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. It is to be pointed out that Section 63 of the Customs Act refers to 'Payment of Rent and Warehouse Charges'. In fact, the liability to pay the warehouse charges is basically on the importers, who stores the goods in warehouse. Moreover, the liability to pay the warehouse charges may shift from the importer to some other person based on the facts and circumstances of each case, in the considered opinion of this Court. It is to be noted that Section 149 of the Customs Act, deals with 'Amendment of Documents'. In terms of this Section, the proper officer may, in his discretion authorise any document after it was presented in the Customs house to be amended and that the proviso to Section 149 of the Act, mentions that no amendment of a bill of entry or a shipping bill or bill of export shall be authorised to be amended, after the import goods have been cleared for home consumption or deposited in a wareho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 authority, in the considered opinion of this Court. It is to be remembered that a 'Mandamus' will not be issued to enforce a contract. The remedy in private Law is to file a suit for damages or for specific performance, as the case may be. In short, for the claims arisen out of violation of contract, the suit for damages is the proper remedy and not a petition under Art.226 of the Constitution of India. 12.15. 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. To put it precisely, as the writ proceedings is one of summary nature, the disputed questions of fact are mixed q ..... X X X X Extracts X X X X X X X X Extracts X X X X
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