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TMI Blog1991 (1) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... own suppliers and exporters of various types of raw materials and finished goods from Singapore to India and other countries. One of the customers of the petitioner-firm is the 4th respondent who has bought many items especially metallurgical grade silicon. About 249 drums of metallurgical grade silicon and certain other goods like cadmium were shipped by the petitioner by the vessel M.V. "LEUVE" on 16-10-1990. The said goods had been consigned to and in favour of the 4th respondent. But the entire case of the petitioner is that the 4th respondent never placed any orders for the said goods and the goods had been consigned in favour of the 4th respondent by inadvertence and by an administrative mistake. After the vessel commenced its voyage towards Madras, the petitioner claims to have discovered the mistake and they had sent urgent FAX Message to M/s. Macoline, Agents of the Vessel at Singapore, directing them to inform the Vessel's agent M/s. Patvolk at Madras not to unload the containers and to bring them back to Singapore. A similar telex message was also sent to the Captain of the vessel. When the vessel was about to reach Madras Port and before receiving the telex message, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the rest of the drums contained silicon. It is stated that the market value of the undeclared goods amounts to Rs. 1 crore. According to the respondents, the parties have violated the provisions of the Customs Act. In particular, it is stated that having mentioned the goods in question in the Import General Manifest, the action of the person in-charge of the conveyance in not unloading the goods in India attracts the penal provisions of Section 116 of the Customs Act. It is also pleaded that respondents 1 to 3 have no authority to allow re-export of the goods unless applied for with proper and admissible reasons. The emphasis is on the fact that the goods were intended to be imported to India and this position is clear from the various documents. It is not incumbent on the third respondent to direct re-export of the goods. 4. The fourth respondent has also filed a counter affidavit. It is stated that the fourth respondent did not enter into any contract with respect to the subject goods. His business premises were raided on 31-10-1990. When he contacted the Steamer Agent with reference to the Import General Manifest, he was informed that the same had been cancelled as per the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Others [1988 (37) E.L.T. 500 (Bom.) = 1988 (18) ECR 475 (Bombay)]. In that case, the goods were shipped to India from Brazil on a contract and letters of credit had also been opened. On arrival, the importer refused to retire the documents and also refused to clear the goods. It was, therefore sought to be re-exported to Singapore. The Additional Collector of Customs passed an order confiscating the goods and permitting re-shipment on payment of a sum of Rs. one lakh in foreign exchange. The Court held that Section 111(d) did not apply to the facts of the case, and set aside the orders of the Additional Collector imposing the fine. In that case, by the time the final order was passed, the goods had been permitted to be exported to Singapore on payment of the disputed amount. Tne facts of these cases are slightly different and according to me, in the present case there is no difficulty with reference to the claim of the petitioner. In this case, the 4th respondent did not file any document to clear the goods and even before the ship was berthed, instructions had been given to recall the goods back to Singapore. 6. It is alternatively contended that there has been no import at all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iable for confiscation, then there is no question of permitting re-export of the goods. 8. The arguments of Mr. P. Narasimhan are no doubt attractive. But a closer examination of the points raised by him shows that Section 116 cannot at all be invoked against the petitioner-firm. Admittedly, the petitioner is not the person in-charge of the conveyance of the subject goods. Therefore, it is well open to respondents 1 to 3 to take action against the person in-charge of the conveyance and it is not pretended that the Customs Authorities have a clear hold on the shipping agents. So far as Section 111 is concerned, the ingredients of Section 111(d) are not present in the case. As rightly argued by the learned counsel for the petitioner, the goods have not been imported or even attempted to be imported into India. The facts of the case clearly disclose that though the goods had come to the Madras Port, there was absolutely no intention to import the goods. The Counter Affidavit of the 4th respondent is crystal clear on this aspect. So far as the petitioner-firm is concerned, they have clearly established by the FAX and Telex messages that as soon as they found out the mistake in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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