9911796707
TMI Blog2025 (1) TMI 999X X X X Extracts X X X X X X X X Extracts X X X X ..... nsumption, indicates that it includes any owner, beneficial owner or any person holding himself out to be the importer. This would indicate that the definition is an inclusive one and considering the definition of 'beneficial owner', as defined in Section 2(3-A) of the Customs Act, which defines it to mean any person on whose behalf the goods are being imported or exported, or who exercises effective control over the goods being imported or exported, would further indicate that it would also mean a person, who is capable of exercising legal control and possession over the same. The language of the definition of 'importer', nowhere indicates that such importer, for the purposes of importing of goods into India, has to be an Indian Party. >A perusal of the Public Notice No. 33/2018, indicates that it was issued on account of a number of instances where consignments of hazardous waste, other waste or restricted items were imported in the name of certain importers and remained uncleared, without anyone coming forward to claim the cargo, leading to a suspicion that such consignments were imported for dumping hazardous waste from the exporting country which was posing a serious envir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17/01/2023 to 09/03/2023, on account of their transshipment from Nhava Sheva, India. The obligation of the petitioner, who claims title to such goods, to get them cleared, after following the procedure as prescribed in Sections 45 to 47 of the Customs Act, thus accrued on such dates when the goods reached ICD Wardha. The petitioner, thus had to get them cleared within a period of 30 days as and when they were unloaded at ICD, Wardha - the earlier communication dated 15/05/2024 (pg.212) by the petitioner to the Assistant Commissioner of Customs, ICD Wardha, in fact, indicates its knowledge of the entire set of events which had led to the consignment reaching ICD Wardha, and so also its obligation and responsibility to get them cleared as the said communication specifically records the intention of the petitioner to pay the customs duty and clear the consignments. Even if customs duty was not payable on the consignment, as is contended, still, this communication indicates the willingness of the petitioner to clear the consignment, which in turn would mandate it to follow the procedure for clearance as indicate in Sections 45 to 49 of the Customs Act. >The action of the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same to the port at Singapore. It also seeks a declaration that the auction conducted by the respondent No. 3 in which the bid of the respondent No. 5 has been accepted is illegal and liable to be set aside. In the alternative, a direction is sought to the respondent No. 3 to hand over the entire sale proceeds of the Cargo to the petitioner, unconditionally and free of all lien, including payment of container detention charges, cargo demurrage charges or auction charges payable or demandable by any of the respondents. >4. The facts leading to the present petition, as agreed to by Mr. V.S. Sridharan, learned Senior Counsel for the petitioner and Mr. Akshay Naik, the learned Senior Counsel for the respondent No. 3 are summarized as under : >Sr.No. >Date >Particulars >Ref. Annex./ Pg. >PDF Pg. >1. >25.08.2022 >Pursuant to an order placed by Petitioner (as buyer) with Maptrasco (as seller) under a Sale Contract dated 25.08.2022, a consignment of 1263.880 MTS of Shredded Steel Scrap ISRI 211 Grade ("Cargo") was shipped by Gemini Corporation B.V. ("Gemini") from the Por ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l to Singapore based agents of Respondent No. 4, requesting for issuing switch BL and for change in final destination from ICD Wardha to an ICD in Malanpur. >A6 /Pg.138 >149 >7. >04.01.2023 >Singapore based agents of Respondent No. 4 responded stating that Import Manifest for all BL's was closed on 12.12.2022 and requested the Petitioner to approach Respondent No. 4. Respondent No. 4 cited another reason that after checking their systems, they had determined that the Cargo could not be delivered to an ICD in Malanpur as ICD in Malanpur was not available for transit from JNPT. >A6 /Pg.138-139 >149-150 >8. >04.01.2023 >Import General Manifest ("IGM") issued by Respondent No. 4 for all three BL mentioning consignee as IOB, Maptrasco as first notify party and Petitioner as second notify party. >A8 /Pg.145 >156 >9. >05.01.2023 >Sub-manifest Transshipment Permit was issued for all containers without the name of any Indian Consignee. >A9 /Pg.147 >162 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent No. 4. >A13/Pg. 161 >187 >15. >04.05.2023 >E-mail exchanged between the Petitioner, Respondent No. 3 and Maptrasco regarding payment of ground rent etc. >1/Pursis dated 06.12.2024 > >16. >05.05.2023 >Respondent No. 4 addressed an e-mail to the Petitioner stating that: >i. They will amend the IGM without any charges. >ii. They will try their best to waive detention charges. >iii. For Demurrage Charges Petitioner was asked to speak directly to Respondent No. 4. >iv. Customs / Penalty to be borne by consignee / customer. >A 14 /Pg. 164 >190 >17. >29.05.2023 >Petitioner requested the Respondent No. 4 for a complete waiver of the detention charges, IGM amendment charges and demurrage since the containers had been wrongfully carried to ICD Wardha, which was against the instructions of the Petitioner and that the CFS liability was in excess of the value of the Cargo, and hence requested for a waiver of 100% detention charges, IGM amendment charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 67 >193 >20. >28.06.2023 >Respondent No. 4 addressed an email to the Petitioner, inter alia, stating that they would try extending the waiver on detention charges upto 50% on all the 3 (three) Bills of Lading, subject to approval from its management. >A 18/Pg. 170 >196 >21. >09.08.2023 >Respondent No. 3 once again appears to have written to the Respondent No. 2, requesting permission to enlist the Cargo for auction. The e-mail mentions that Respondent No. 3 had sent an e-mail to the Respondent No. 4 with a direction to them to contact the consignee and inform them to contact Respondent No. 3, and since no one has come forward to file Bill of Entry and clear the Cargo, the Cargo should be auctioned. >A 19/Pg.171 >197 >22. >18.08.2023 >3 (three) Import Tax Invoice bearing Nos. 5067320301, 5067320302 and 5067320303 were issued by the Indian agents of Respondent No. 4 to Petitioner towards various charges relating to the Cargo lying at ICD Wardha. 2 (two) of the said invoices incorrectly r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .12.2023 >Letter and E-mail from Respondent No. 3 to Maptrasco informing that the cargo arrived at ICD Wardha on the following dates: - >1. 42 Containers - 17.01.2023 >2. 1 Container - 22.01.2023 >3. 6 Containers - 16.02.2023 >4. 1 Container - 09.03.2023 >Since, no one has claimed the Cargo till date, Maptrasco was called upon to clear the same by 15.12.2023 failing which the Cargo will be auctioned. >A 28/Pg. 190 >216 >31. >13.12.2023 >Reminder e-mail from Respondent No. 2 to Maptrasco regarding the Cargo. >A 29/Pg. 192 >218 >32. >21.12.2023 >Letter from Respondent No. 1 to Maersk seeking details / clarification as to why Cargo was shipped to ICD, Wardha instead of sending it back to Singapore and what steps has Maersk taken to rectify this wrong shipment. >A 30/Pg. 194 >220 >33. >23.12.2023 >Letter from Respondent No. 3 to Maptrasco, directing them to clear the Cargo by 31.12.2023 failing which the Cargo will be auctioned. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... >42. >09.05.2024 >Respondent No. 3 wrote to Respondent No. 2 informing that it had issued 3 (three) notices via e-mail to Maptrasco, to which there was no response from them, which had also been conveyed to the Respondent No. 1, and that it had appointed a Government Approved Valuer, Shri Keshao R. Dudhe, Chartered Engineer, and was in the process of preparing a detailed inventory in his presence and would submit the same shortly to the Respondent No. 2. >A 43/Pg. 211 >237 >43. >15.05.2024 >Petitioner had written to the Respondent No. 2 informing them that the Petitioner is the owner of the Cargo and requested for their co-operation in clearing the same. >A 44/Pg. 212 >238 >44. >15.05.2024 to 24.05.2024 >In the interregnum, Petitioner was able to identify a potential buyer for the Cargo, resulting in several emails exchanged between the Indian Agents of Respondent No. 4 and the Petitioner's proposed buyer. >A 45/Pg. 214 >240 >45. >26.05.202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent No. 4 seeking clarifications as to why the import tax invoice mentions name of 'Rathi Iron and Steel Industries' as buyer when the Petitioner is claiming to be owner of the Cargo and that the same is contrary to the documents that has been filed by them. >A 52/Pg. 246 >272 >52. >28.06.2024 >Letter from Respondent No. 2 to the Petitioner, forwarding the information and documents that were available with them. >A 53/Pg. 247 >273 >53. >01.07.2024 >Detailed representation from to the Respondent No. 1 with a copy to the Respondent No. 2, setting out the entire true and correct facts pertaining to this transaction, and while so doing pointed out the various fraudulent and illegal acts of omission and commission committed by the Indian Agent of Respondent No. 4 in this regard, as well as set out its various grievances to the notice issued by the Respondent No. 1 for auction of the Cargo. Under the circumstances, the Petitioner requested Respondent No. 1 to direct the Respondent Nos.3 and 4 not to charge any detention/demurrage/ground rent on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not to initiate any steps to auction the Cargo belonging to the Petitioner. The Petitioner further requested that instructions be issued to the Respondent Nos. 1 and 4 to reship the Cargo to Singapore. >A 59/Pg.258 >284 >61. >08.08.2024 >Letter from ICD, Wardha to Customs requesting for permission to auction the goods. >A 60 /Pg. 275 >301 >62. >09.08.2024 >Letter from SIIB Customs to ICD Wardha, granting permission for auction of the Cargo. >A 61/Pg. 276 >302 >63. >20.08.2024 >The auction notice is uploaded/published on MSTC Government website holding and conducting auctions for Authorities. > > >64. >30.08.2024 >Letter by the Respondent No. 3 to the Respondent No. 2 regarding submission of the valuation report Valuation Report at Pg.11/Pursis dated 06.12.2024. >Pg 10/ Pursis dated 06.12.2024 > >65. >04.09.2024 >The Respondent No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... >73. >06.11.2024 >Letter by the Respondent No. 2 (Customs) to the Respondent No. 3 granting approval for filing the Bill of Entry. >Pg 20/ Pursis dated 06.12.2024 > >74. >20.11.2024 >Respondent No. 5 was informed to submit pollution certificate. > > >75. >21.11.2024 >Respondent No. 5 informed that it is just a trader and not a manufacturer of the goods. Hence, no pollution certificate is required by it. However, Respondent No. 5 has sold the goods to one Evonith Value Steel Ltd., Wardha, who is the manufacturer and has the necessary pollution certificate. >Pg 6 of Pursis of R/5 > >76. >22.11.2024 >That on the request of the Respondent No. 5 Evonith Value Steel Ltd. supplied a copy of the pollution Certificate, which was submitted to Respondent No. 3, which in turn submitted it to Customs. Letter by the Respondent No. 3 to the Respondent No. 2 submitting the Bills of Entry. >Pg 7-11 of Pursis of R/5 Pg 21/ Pursis dated 06.12.202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about the importer, exporter, and transport vessels. >(C) They also requested for issue of a "Sub Manifest Transhipment Permit"(SMTP) for Transhipment of above cargo from gateway Port at JNCH i.e. INNSA1 to Port of Delivery at ICD Wardha i.e. INCHJ6. Sub Manifest Transhipment Permit is a document issued by Customs authorities that allows a shipping agent to transfer cargo from one vessel to another during transit, permitting the "transhipment"of goods to a different destination port or inland container depot (ICD) while providing detailed information about the cargo on a sub-manifest. Thus, it is a smaller part of the overall cargo manifest and essentially a permit needed to move part of a larger shipment to another location during transit. >(D) As these consignments were meant for Transshipment to ICD Wardha (INCHJ6) as requested by Shipping Line viz. respondent No. 4 while filing of IGM, a Transshipment Permit i.e. TP bearing number 2208285 dated 05/01/2023 was generated by ICES system automatically. "ICES"stands for "Indian Customs Electronic Data Interchange System". It is a system that uses Electronic Data Interchange (EDI) to electronically ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incumbent's responsibility to file Bill of Entry by appointing an Indian agent of Maptrasco or any Indian buyer of Maptrasco. The goods were unnecessarily kept idle for 24 months but Bill of Entry was never filled by anyone. >(H) Further, it is submitted that in accordance with Section 48 of the Customs Act, 1962 and the Board circular 49/2018-Customs dated 03/12/2018 regarding auction of the cargo, the Customs issued letters dated 27/05/2024, 03/06/2024 and 10/06/2024 to MAERSK Shipping Liner and letter dated to 09/07/2024 and 26/07/2024 to M/s. Asian One PTE Ltd., Singapore (by email) to file Bill of Entry but they failed to do so. Last opportunity was accorded to them to file it by 07/08/2024. >(I) Since the petitioner failed to file the Bill of Entry for clearance of the goods in spite of sufficient time granted for the same, the respondent No. 1 accorded the permission to auction the goods on 08/08/2024 under Section 48 of Customs Act, 1962. The same was informed to the petitioner (M/s. Asian One PTE Ltd., Singapore) vide email dated 09/08/2024. >(J) Further, the custodian vide their letter dated 17/10/2024 informed this office that they had also requested M/s. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o ensure that there would be no unloading at the point of disembarkation, if the aforesaid details were absent. >5.3. The very fact that the goods were permitted to be disembarked would indicate that all requirements in that regard as per Indian Law stood satisfied. In the alternative, he submits that if the retirements of Indian Law were not satisfied then it was the fault of the custom authorities in permitting, unloading of the goods, who ought to have refused to do so, and having not so done it was the custom authorities, who were responsible for the present state of affairs, on account of which, the petitioner, having title would be entitled to the goods and the directions as sought. >5.4. In fact, it is his contention, that even before the vessel sails from the port of lading, the necessary details such as the name of the importer, his/its PAN number/GSTIN number/IE Code are necessary to be incorporated, in the bills of lading. >5.5. Further inviting our attention to the public notice No. 154 of 2018, dated 07/12/2018, it is contended that a proper declaration of description of the goods in Import General Manifest (IGM), has to be done by the shipping lines, which wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uted by MAPTRASCO in favour of the petitioner to contend that there cannot be any dispute that the petitioner has title to the goods in question on the basis of this document. He further invites our attention to the three commercial invoices dated 20/11/2022 (pg.82/84 and 86); three packing lists of the same date (pg.83/85 and 87) to buttress his submission regarding title to the consignment of shredded scrap. >5.9. It is further submitted, that since the consignment was entrusted to the respondent No. 4 for shipping it was the duty of the respondent No. 4 to have ensured the necessary details to be inserted in the import manifest as well as the bills of lading and the corresponding duty of the customs authorities to have ensured that without the necessary details there was no unloading, on account of which, it is the customs authorities and the shipper/respondent No. 4, who are responsible for the unloading of the goods, which were at the first place not destined to be unloaded at Nhava Sheva port, itself, due to which the petitioner not being at fault, the consequences, as indicated above, need to follow. >5.10. Mr. Sridharan, learned Senior Counsel for the petitioner furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He also placed reliance upon the e-mail dated 01/06/2023 (pg.166) by the respondent No. 4 and the letter dated 21/12/2023 (pg.194) by the customs to respondent No. 4/Maersk and the reminder dated 19/06/2024 (pg. 246). He further submits that a fraud has been played upon the petitioner by the respondent No. 4/Maersk by presenting fraudulent bills of lading upon the customs showing Rathi Iron and Steel as the Indian importer, when the petitioner had never entered into any transaction with the said Rathi Iron and Steel at any point of time. He submits that the import tax invoice dated 10/12/2022 (pg.149) raised by the respondent No. 4/Maersk upon Rathi Steel, which showed the port of delivery as JNPT and the place of delivery at Dhannad, was not an invoice for price of goods but an invoice for IGST on the bill of lading of the petitioner, and was for charges on account of services rendered by respondent No. 4/ Maersk, which was also during High Seas. He also invites our attention to the Cargo Shipment approval order dated 04/01/2023 (pg.147) issued at Nhava Sheva port to contend that the consignee shown therein was Maptrasco, which was not an Indian party, on account of which, the dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 85 to 87) in all of which, the port of discharge is shown as Nhava Sheva. He also invites our attention to the Bill of Lading dated 01/12/2022 (pg. 89) in which the place of delivery is shown as Wardha. He also relies upon the document at pg.91, which according to him, indicates freight prepaid for Indian GST purposes, since destination country as per this document is India. He also invites our attention to a similar position occurring in the three bills of lading. >6.2. Reliance is also placed upon the e-mail dated 21/12/2022 (pg.137) by the petitioner to respondent No. 4/Maersk seeking change of destination and the reply by the respondent No. 4/ Maersk that it could not be done as the custom manifest had already been issued at destination. He also invites our attention to the e-mail dated 04/01/2023 (pg.138) by the petitioner to respondent No. 4/ Maersk for switching destination from Wardha to Malanpur and the reply dated 04/01/2023 (pg.138) by respondent No. 4/ Maersk that it cannot be done. Reliance is also placed upon the e-mail dated 17/04/2023 (pg.159) by Maptrasco to the respondent No. 4/Maersk (after 3 months) that it had found a buyer at Wardha and asking respondent No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the respondent No. 3 to Maptrasco, asking it to clear the cargo by 15/12/2023 otherwise the cargo will be referred for public auction as per the Indian Custom Procedure; the communications dated 23/12/2023 and 01/01/2024 on the same line, to contend that petitioner was throughout aware of the liability to pay the rental charges. >6.5. He further invites our attention to the communication dated 09/05/2024 (pg.211) seeking permission to put the cargo to auction and so also the communication dated 15/05/2024 by the petitioner to the Assistant Commissioner of Customs, ICD Wardha, (pg.212) which indicates their intention to pay the customs duty and clear the consignment after completing the clearance formalities. He also places reliance upon the e-mail dated 09/07/2024 addressed by the Customs to the petitioner, to which there is an attachment in respect to the communication dated 09/07/2024 (Pg.252) intimating the communication by the respondent No. 3/custodian vide letter dated 05/07/2024 (pg.254) for auction of the goods as the bill of entry has not been filed by the petitioner and calling upon the petitioner to file bill of entry and clear the goods before the date given by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of which since the auction has become final, the same cannot now be cancelled and the position cannot be now reverted back as is being claimed in the position. >6.7. He also places reliance upon Mumbai Port Trust Vs. Shri Lakshmi Steels and another (2018) 14 SCC, 317 (Paras 36 and 37), which mandates, that it is the duty of the importer to first clear the charges due and in case if he demonstrates any mala fides or abuse of the power by the Customs then reclaim it after proving the same. He, therefore, submits that since the respondent No. 3 is entitled to the demurrage and ground rent, the payment of the same cannot be stalled by the petitioner, under the guise of the present petition, which has been filed only to prevent the auction being fructified by delivery of the cargo to the auction purchaser. It is also submitted that only on account of the pendency of the present petition the challan for the IGST as generated is not being accepted by the Authorities, which not being the fault of the respondent No. 3, nothing can be made out of it. >6.8. He further submits that though the goods were disembarked at Nhava Sheva Port on 04/01/2023 and had reached the ICD terminal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent Nos. 1 and 2 dated 16/12/2024, which is a final printout of the Import General Manifest (IGM) dated 04/01/2023, in which also the destination port is INCHJ-6 which is ICD Wardha. He also invites our attention to the sub-manifest transshipment permit (pg.39 of the reply) for the purpose of transshipment of the goods from Valencia to ICD Wardha via JNPT and the cargo transshipment approval order dated 05/01/2023 (pg.45) in which also the port of destination is shown as ICD Wardha. >8.1. He further states, that circular No. 14/2017 dated 11/04/2017, insofar as it speaks about the name of the Indian Party, to be included in the documents, the same is not mandatory, but is for the sake of convenience to ensure shortest transshipment time and can be amended at any point of time before the clearance of goods in terms of Section 46 of the Customs Act. He further invites our attention to the legal notice dated 02/08/2024 issued by the petitioner through counsel (pg.258) specifically paras 4 to 6, which according to him, indicates that the transshipment of the goods to ICD Wardha were within the specific knowledge of the petitioner and the respondent No. 4 and an attempt was made f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the goods being unloaded at the Nhava Sheva Airport Mumbai. He, therefore, submits that the basic mistake was that of the respondent No. 4/Maersk. >9.3. He also invites our attention to Public Notice No. 33/2018 dated 07/03/2018 issued by the Customs to contend that the instructions had a binding effect upon one and all, as that is the standard mode of functioning of the Customs, by issuing various circulars and public notices, which are binding on the shipping lines, the custodian as well as the importer, and therefore, they need to be enforced, for which he relies upon Ramana Dayaram Shetty Vs. International Airport Authority of India and others (1979) 3 SCC 489, para 10. >9.4. He specifically relies upon Clause 3(ii) of Public Notice No. 33/2018, which are the instructions to the shipping line functioning at Nhava Sheva Port to indicate the requirements as given in para 3(i) for the purpose of discharging the consignment cargo at the port. He, therefore, submits that the instructions as issued in the Public Notice No. 33/2018 are mandatory and binding upon the shipping lines and in case the manifest and the import advance list do not contain the name and details of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re applicable to various ports. He, therefore, submits that since the implementation of the Sea Cargo Manifest Regulation has been postponed vis-a-vis the Nhava Sheva Port, the manifest therein, continues not to be in Form VI (A) but in terms of Form III of Import Manifest (Vessels) Regulations, 1971 which in fact, is the Form used in the present matter. >10.1. He, therefore, submits that the unloading of the goods, at Nhava Sheva Port is the sole mistake of the respondent No. 4/Maersk and not of the Customs so as to claim that any negligence first made by it. It is his contention, that the petition does not have any merit and it may be dismissed. >11. In view of the candid statement made by Mr. Sridharan, learned Senior counsel for the petitioner that the relief in the petition was being restricted to the enforcement of the claim to the auction money, and since the auction purchaser had already deposited the auction money and considering the impending vacation, by way of an interim arrangement, we had passed the following order on 17/12/2024 : >"We have extensively heard the respective learned Counsels for the parties and have closed the matter for judgment, however, cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms Act, in relation to any goods, at the time between their importation and the time when they are cleared for home consumption, indicates that it includes any owner, beneficial owner or any person holding himself out to be the importer. This would indicate that the definition is an inclusive one and considering the definition of 'beneficial owner', as defined in Section 2(3-A) of the Customs Act, which defines it to mean any person on whose behalf the goods are being imported or exported, or who exercises effective control over the goods being imported or exported, would further indicate that it would also mean a person, who is capable of exercising legal control and possession over the same. The language of the definition of 'importer', nowhere indicates that such importer, for the purposes of importing of goods into India, has to be an Indian Party. The Statutory provisions as contained in the Customs Act, also do not indicate, such a requirement, for the purpose of importing any goods in India. No such provision has been brought to our notice by the respective learned Counsels, which postulates such a requirement, before importing any goods in India. >13.1. We, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to be mandatory, then its violation, ought to carry consequences, which is not the position as is reflected from Public Notice No. 33/2018, Public Notice No. 154/2018 or for that matter the stand of the respondents Nos. 1 and 2 as reflected from the pursis dated 10/12/2024. >13.2. Though Mr. Sridharan, learned Senior Counsel for the petitioner, relies upon Ramana Dayaram Shetty (supra) para 10, in support of his this contention, what is necessary to note is that the observation in para 10 thereof, that an Executive Authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation thereof, was in the context of an eligibility criteria prescribed for a person submitting a tender, satisfaction of which, was obviously a sine qua non, before the tender could be considered as a valid and acceptable one. We are here not considering a similar scenario. That however does not mean that the directions as contained in the Public Notice Nos. 33/2018 and 154/2018, were not to be followed, however, for the purposes of basing a claim on such directions, it was neces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n port in Form-VIA; or >(ii) for vessel arriving at an Indian Port from another Indian Port directly or through designated foreign route in Form-VI-B; >(f) any other declaration which, under the provisions of the Customs Act or any other Act for the time being in force is required to be delivered to the proper officer on arrival of vessel. >(3) The general declaration and cargo declaration shall be delivered before the departure of the vessel from last port of call and the rest of the arrival manifest shall be delivered before arrival of the vessel. >(4) Notwithstanding anything contained in sub-regulation (3), the authorized sea carrier may update the information furnished in Form-VIA and Form-VI-B, - >(i) before 48 hours of expected arrival at the destination customs port, for the vessels on voyage of more than ninety-six hours between departure from the last port of call and arrival at the next port; >(ii) before 24 hours of expected arrival at the destination customs port, for the vessels on voyage of forty-eight to ninety-six hours between departure from the last port of call and arrival at the next port; >(iii) before 6 hours of expected arrival at the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dates till which the transitional provisions are applicable are reproduced as under : >"15. Transitional provisions. -(1) Notwithstanding anything contained in regulations 4, 5 and 7, the authorized carrier may deliver the cargo declaration in Form VI-A or Form VI-B and Form VII-A or Form VII-B or arrival and departure manifest in Form VIII or Form VIII-A, for the period of forty-five days from 15th May 2020, till 1st August, 2020. >(2) Notwithstanding anything contained in these regulations, the authorized sea carrier shall continue to deliver the cargo declaration in Form III of the Import Manifest (Vessels) Regulations, 1971 and Form I of the Export Manifest (Vessels) Regulations, 1976, in the manner as was applicable before the commencement of these regulations, till the date mentioned in columns (3) of the table below for the Customs Ports in the column (2) of the said table. >TABLE >Sr.No. >Customs Ports >Date till which the transitional provisions are applicable >(1) >(2) >(3) >1. >Mormugao (INMRM1) >10.09.2024 >2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 86), the corresponding packing lists dated 20/11/2022 (Pgs. 83, 85 and 87) which form part of the sales contract, all indicated the port of delivery to be Nhava Sheva, India. Not only that, the Commercial Invoices as well as the Packing Lists, in addition to indicating the port of delivery being Nhava Sheva, India, also indicated further transshipment to Wardha, being the place of delivery of the consignment/cargo. In the bills of lading, 15 which is a transport document, which have been issued by the respondent No. 4/Maersk dated 01/12/2022-Bill No. 222568540 (20 Containers) (Annex-II/pg.89); dated 01/12/2022-Bill No. 222568576 (20 Containers) (Annex-III/pg.101) and dated 02/12/2022-Bill No. 222568555 (10 Containers) (Annex-IV/pg.113), the port of discharge is mentioned as Nhava Sheva, India and the place of delivery as Wardha, which indicated that the consignment/cargo was destined for Wardha. The Bills of Lading further mention that there would be available to the petitioner a facility of 12 days free detention at destination, meaning 5 thereby that the consignments/cargo, was to be cleared by the petitioner, within that time frame, failing which any further detention of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld have been returned to the Country of origin, however, on account of incorrectly adding the shipment to the manifest, had led to an incorrect IGM manifestation, and this obviously had resulted in discharge of consignment at Nhava Sheva, India and transshipment to Wardha. If that be the case then the remedy of the petitioner would be as against the respondent No. 4/Maersk, the shipper, who is claimed to be responsible for such a fraudulent act and not against the respondent Nos. 1 to 3. It is equally trite, that since a plea of fraud is being invoked, the same would require evidence to be led, as disputed questions of fact would be involved and would not permit the invocation of the extraordinary jurisdiction of this Court under Article 226 of the Constitution. >16. Insofar as the contention that the consignment/cargo, upon its discharge, came into the custody of the respondent Nos. 1 and 2 and thereafter upon transshipment, to Wardha, in the custody of the respondent No. 3, as contended by Mr. Sridharan, learned Senior Counsel for the petitioner, we are in agreement with it, for the reason, that the language of Section 45 of the Customs Act, mandates it to be so, which is rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 46 (3) therefor, and also make and subscribe a declaration as to the truth of the contents of the bill of entry and in support thereof to produce to the proper officer the invoice and such other documents relating to the imported goods as may be prescribed. >Sub Section 4-A of Section 46 further indicates an obligation upon the importer to ensure the accuracy, completeness, authenticity and validation of the information as contained in such bill of entry. Section 47 then provides for the clearance of the goods as entered in the bill of entry for home consumption, upon being satisfied with the compliance with all requirements thereto, by passing a written order in that regard, consequent to which the goods are then released in the custody of the consignee/importer. All this has to be got done by the consignee/importer, within a period of 30 days from the date of the unloading of the goods at a custom station or within such extended time as the proper officer may allow, in this regard, which is spelt out from Sections 48 and 49 of the Customs Act. Thus, till the goods are cleared by passing of an order in that regard under Section 47 by the proper officer, they continue to r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, that after the extension having expired on 07/08/2024, the petitioner had not applied for and been granted any extension thereafter, and as the goods continued to remain in the custody of the respondent Nos. 1 and 2, through the respondent No. 3, the same gave a cause to the respondent No. 3, to claim auction of the goods on account of demurrage or rent, apart from such other charges as were permissible for the respondent No. 3, to claim on account of storage of the goods with it. The e-mail dated 04/05/2023 by the respondent No. 3, to Manish Khaitan of Maptrasco (filed with pursis dated 06/12/2024) to which the petitioner is also an addressee, indicates a claim by the petitioner of rental charges for the overstay of the consignment with the respondent No. 3; the e-mail dated 08/12/2023 by the respondent No. 3, asking Maptrasco to clear the cargo by 15/12/2023 otherwise the cargo will be referred for public auction as per the Indian Custom Procedure; the e-mail communications dated 23/12/2023 and 01/01/2024 on the same lines, would indicate that Maptrasco as well as the petitioner were throughout aware of the liability to pay the rental charges, on account of the overstay of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of which was enclosed) had issued a notice for auction of the goods in question as the petitioner had not filed any bill of entry and asking the petitioner to clear the goods before the date given by the Custodian/respondent No. 3, otherwise the request for grant of permission under Section 48 for auction would be considered by the respondent Nos. 1 and 2, has not been denied by the petitioner. In fact, the e-mail dated 24/07/2024 (pg.256) by the petitioner specifically acknowledges the receipt of this e-mail dated 09/07/2024, and seeks extension of 10 days. This would clearly indicate that the petitioner, was put to notice that the goods were being proposed to be auctioned, on account of their overstay with the respondent No. 3, and the respondent Nos. 1 and 2, were intending to consider the grant of permission for the same in terms of Section 48 of the Customs Act. Since there was no further response from the petitioner, during the aforesaid 10 days as sought by it, by the e-mail dated 26/07/2024 (pg.257) by the office of the respondent No. 2, addressed to the petitioner, further time was granted till 5 07/08/2024, as a final opportunity. To this, there is a legal notice issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that the claim by the petitioner that the custody of the respondent Nos. 1 to 3, was invalid, is incorrect, as a result of which, the plea by the petitioner, that the deductions as contemplated by Section 150 (2) of the Customs Act, are not attracted or applicable is turned down. >21. That being so, the course of action as contemplated by Section 150 (2) (a) to (d) of the Customs Act, in relation to the application of the sale proceeds, on account of the auction, should follow. In this context, in terms of Section 150 (2) (a) the proceeds of the sale have to be first applied to the payment of the expenses of the sale. The sale has been conducted by the respondent No. 3 and therefore, this is for the respondent No. 3, to do, as no data has been placed before us as to how much were the expenses of the sale. The sale proceeds have then to be applied in terms of Section 150 (2) (b) to the payment of the freight and other charges, if any, payable in respect of the goods sold, to the carrier, if notice of such charges has been given to the person having the custody of the goods, which is the respondent No. 3. The respondent No. 4, who is the Shipper, nor any other entity has placed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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