9911796707
TMI Blog2005 (9) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, New Delhi, Respondent No. 3 is directed to release the goods and that the Commissioner of Customs, Mumbai, was directed to make payment of rental amount for the period from October, 1993 to March, 1995. Further, the Assistant Commissioner of Customs, Appraising Group III, has, by letter dated 10th January, 1997 (Exhibit "G" to the Petition), informed Respondent No. 3 that the Customs will make payment of Rs. 5,58,977/- to Central Warehousing Corporation. Hence, since the Customs is making payment for warehousing in terms of the order passed by the Government of India, Respondent No. 3 is directed to release the Petitioner's goods immediately on execution of bond by the Petitioner to pay any amount if Central Government so directs. Further, if Respondent No. 3 is having any other claim for the warehousing charges, it would be open to Respondent No. 3 to claim it from Respondent Nos. 1 and 2 and for that also the Petitioners would pay the demurrage charges if the Central Government so directs." 4.A clarification was issued on 18th March, 1997 by the Division Bench to the effect that execution of bond by the petitioner would be subject to result of the petition. It appears that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the refund application was considered, the respondents 1 and 2 passed an order on 12th September, 1997 and the claim for refund was granted. Thereafter, this Court admitted this petition on 7th October, 1997. 8.Prior to the admission of this Writ Petition, on 13th May, 1997, this Writ petition was amended and the petitioner seeks following reliefs :- "(aa) that this Hon'ble Court do issue a Writ of Mandamus under the said Article 226 ordering and directing : (i) the Respondents jointly and severally to pay to the Petitioners the market value of the said 33,465 kgs. being Rs. 6,85,613/- with interest at such rate as this Hon'ble Court may deem fit. (ii) Respondent No. 1 to remit and pay back to the Petitioners the duty on the said 33,465 kgs. and (iii) Respondent No.3 to refrain and forbear from demanding and/or recovering warehousing charges from the Petitioners." It is this relief which is now surviving for consideration in this petition. 9.For appreciating the rival contentions on this issue, a reference to some facts is necessary. The petitioner imported 68,915 kgs. of Yarn in India vide Bill of Entry dated 21st October, 1993. On arrival of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the goods. The same were lost during their custody with the CWC (respondent no. 3.). He submits that the said Corporation is in possession as bailee of the said goods. The failure of CWC to return the entire quantity of the goods which were duly received and so acknowledged, is enough to fix the liability and responsibility of reimbursement on them. 12.In support of these contentions, Mr. Sethana relies upon Sections 160 and 161 of the Contract Act. He also relies upon the decision of Supreme Court reported in 1999 (113) E.L.T. 3 (S.C.) (Northern Plastics Ltd. v. Collector of Customs and Central Excise). He also places reliance upon a decision of Supreme Court reported in 2002 (140) E.L.T. 3 (S.C.) (Shilps Impex v. Union of India). 13.He submits that in the light of the aforesaid decisions, petitioner is legally entitled to receive the goods or monetary equivalent in terms of price thereof from the respondents. The claim is restricted to the extent of pilfered goods. Mr. Sethna submits that although market value is claimed by the petitioner, the instructions from the petitioner are to restrict the claim to the C.I.F. value of the pilfered goods. Mr. Sethana submits that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aming each other and either of them should be directed by this Court to pay the CIF value of the goods, as claimed. The Customs Act insofar as the levy of and exemption from Customs Duty in Chapter-V thereof provides for duty on pilfered goods. It also takes care of the contingency of remission of duty on lost, destroyed or abandoned goods. Section 23 providing for the same reads thus :- "23. Remission of duty on lost, destroyed or abandoned goods. Without prejudice to the provisions of Section 13,- (1) where it is shown to the satisfaction of the Assistant Commissioner of Customs or Deputy Commissioner of Customs that any imported goods have been lost otherwise than as a result of pilferage or destroyed, at any time before clearance for home consumption, the Assistant Commissioner of Customs or Deputy Commissioner of Customs shall remit the duty on such goods. The owner of any imported goods may, at(2) any time before an order for clearance of goods for home consumption under Section 47 or an order for permitting the deposit of goods in a warehouse under Section 60 has been made, relinquish his title to the goods and thereupon he shall not be liable to pay the duty thereon." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er was authorised to give any writing of the nature executed on 19th November, 1993, is something which cannot be gone into in writ jurisdiction. The assertion of the petitioner that the representative had no authority to sign such letter and this aspect becomes clear if the communication from the Custom House Agent is perused, cannot be gone into and adjudicated upon in the limited jurisdiction conferred upon this Court under Article 226 of the Constitution of India. The claim will have to be proved in accordance with the law for which, if necessary, the Custom House Agent as well as his representative will have to be summoned by the petitioner. Similarly, documents and records from the custody of the Customs Department and CWC, will also need be summoned and produced and their contents proved in accordance with law. Such being the facts and circumstances, we cannot accept the contentions of Mr. Sethna. We decline to entertain this claim despite strenuous and persuasive pleas of Mr. Sethna. 21.Reliance placed on the decision in Northern Plastics Ltd. by Mr. Sethna is not apposite. There, the Supreme Court was exercising jurisdiction under Article 142 of the Constitution of India ..... X X X X Extracts X X X X X X X X Extracts X X X X
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