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TMI Blog1999 (2) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... , dated 15-6-1997, Invoice Value U.S. dollars 32,980, Bill of Lading No. 27430549, dated 13-6-1997; Container No. CRXU. 4638054, Destination-Nepal, Port of Loading-Jebel Ali, U.A.E. Port; Invoice No.KTC/97/149, dated 15-6-1997, Invoice Value US.11. Dollars 34,847; Bill of Lading No. 27430467, dated 13-6-1997. Container No. POCU. 119581; Destination-Nepal, Port of Loading-Jebel Ali, U.A.E. Port." 5.These consignments were shipped for M/s. Nitu Enterprises, through Cargo, Calcutta Transit to Nepal. The contract was entered into between the Kumar Trading Co. Ltd. and M/s. Nitu Enterprises in June, 1997. In pursuance of the contract, the petitioners received letter of credit No.BNR./T/32/629 for US Dollars 3100 and BNR/T/32/630 for US Dollars 3500 from the said M/s. Nitu Enterprises of Nepal. 6.After the contract with M/s. Nitu Enterprises but before shipment of goods M/s. Nitu Enterprises has requested the petitioner to ship out ten times quantity of goods of the value of letters of credit, with a promise that the said M/s. Nitu Enterprises will send the revised letters of credit to the petitioner, for enhance quantity of goods. 7.After enhance quantity of goods were shipped a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o petitioner. He further submits that there is no fraud on the part of the petitioners, there was no intention to send the goods for the purpose of consumption in India. The petitioner has been cheated by M/s. Nitu Enterprises by giving false assurance to purchase ten times of goods of original agreement and that it will send the revised L/C before ship will reach to Calcutta Port. 11.There is no evidence in support that the goods was sent from Dubai to India for consumption in India. While the goods was not imported for consumption in India, there is no question of seizure of such goods while they were on transit to Nepal. On the one hand, the petitioner has been cheated by M/s. Nitu Enterprises and on the other hand, respondents have seized the goods of the petitioners and not permitting the petitioner to re-ship its consignments to Dubai. 12.The goods are lying at Calcutta Port for the last one and a half years and petitioner has to pay the demurrage charges to Port for that period goods are lying at port for no fault on his part. There is no evidence that petitioner is in any way committed any fraud or in collusion with M/s. Nitu Enterprises sent the goods for consumption i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsider the material placed for consideration by the respondents. Respondent has annexed only copy of the show-cause notice and the allegation that the goods was imported for consumption in India and the goods were ten times from the value of letters of credit originally sent to petitioner. The letters of credit submitted by the clearing agent was US Dollars 31000 and US dollars 35000, therefore, it is an unauthorized import. They have also referred some parts of the statements recorded of persons referred in show-cause notice to find out whether the ball-bearings were sold to M/s. Nitu Enterprises. 17.In show-cause notice under Section 124 of the Customs Act, some part of the statements recorded, are referred one Sri Pronoy Kr. Ghosh admits that he received the jobs of M/s. Nitu Enterprises of Nepal from Arati Shipping Agency and he submitted the original documents of the Customs Transit Declarations of M/s. Nitu Enterprises to Nepal Unit of Customs House, Calcutta under the seal of M/s. United Shipping Corporation Customs House agent. 18.Sri Dilip Kr. Mitra, a partner of M/s. United Shipping Corpn., admits that he entered into an agreement with Sri Pronoy Kr. Ghosh, propriet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23.Sri Amal Kanjilal, a partner of M/s. Hindusthan Shipping Agency has admitted that Sri Supriya Panja used to work under him as a jetty of Sircar in his company and during that time he used to look after all the formalities such as documents, processing, port clearance and maintenance of records and during his absence Sri Supriya Panja stated bringing customs transit declaration jobs and got them cleared by obtaining his signature on the blank customs transit declarations copies. 24.From the parts of the statements referred above, I surprised how it can be inferred that M/s. Nitu Enterprises has not placed the order for supply of goods in question. 25.The examination referred above of two persons clearly shows that the persons referred above are engaged in profession of Custom clearing agents and some of them has acted on behalf of the M/s. Nitu Enterprises for custom clearing agent. There is an admission to this fact by the persons referred above that how the case of M/s. Nitu Enterprises came for Custom clearing to them and how they acted on behalf of the M/s. Nitu Enterprises for custom clearance. The letters of credit are also submitted by the clearing agent duly author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y sealed after the above examination. Individual packages in such wagons or containers shall not be sealed except where consumer goods or specialised materials for consumer goods are being transported or where the goods are to go to Nepal by a route where the railway line does not reach upto the last town of the border; Where goods cannot be transported in closed wagons and have to be transported in open wagons or flats, detailed identifying particulars shall be recorded in the Customs Transit Declarations; `Small' consignments of traffic in transit will be accepted for booking by railway from one of the agreed warehouse leased to Nepal Transit and Warehousing Co. Ltd. provided the minimum load condition as applicable in Indian Railways is satisfied". 27.Even if there is any doubt that goods imported for Nepal, in fact, will be diverted or brought for consumption in India. The Custom Deptt. can depute an officer so that the goods can be transported under the supervision of Custom Officer, the Court can also direct that the goods imported for Nepal should be transported under the supervision of Custom Officer till they reach to Nepal border. Firstly, there is no evidence to sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , why the petitioner should be punished. 32.In fact, this is a case of conditional sale. It was agreed upon that M/s. Nitu Enterprises shall pay the consideration for sale at the time of goods reached to Calcutta port, but M/s. Nitu Enterprises backed out from promise. Therefore, the ownership of goods shall remain with the petitioners till the payment of the entire consideration of the goods in paid. It is also pertinent to note that only 3rd copy of bill of lading has been given to M/s. Nitu Enterprises, the other copies of bill of lading are not given to M/s. Nitu Enterprises, so that it could not get possession of the goods, without payment of the whole consideration to petitioners. 33.The Counsel for the respondents also failed to show me as what extra gain petitioner will have by supply more quantity of goods to M/s. Nitu Enterprises than the quantity agreed upon initially. The petitioners will get the price of the goods which they supply, if instead of the goods value US dollars 3100 and US dollars 3500, the order for supplying goods could be for ten times even at the time of original agreement. There is no bar in supplying of more quantity of goods to Nepal party. When ..... X X X X Extracts X X X X X X X X Extracts X X X X
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