9911796707
TMI Blog2025 (1) TMI 999X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel for the respondent No. 3 along with Advocate Mr. P.S. Kadam; Mrs. R.S. Sirpurkar, learned counsel for the respondent No. 4 and Mr. A.B. Patil, learned counsel for the respondent No. 5. 3. The petitioner seeks a writ of mandamus for issuing a direction to the respondent Nos. 1 to 3 to recall the permission granted by them to the respondent No. 3 to proceed with the auction of the Cargo under the bills of lading bearing Nos. MAEU 222568555, MAEU 222568576 and MAEU 222568540 and so also the auction notice in that regard. It also seeks a writ of mandamus to direct the respondent Nos. 1 to 4 to reship the Cargo i.e. 1263.880 MPS of Steel Scrap ISRI - 211 - Grade under the aforesaid bills of lading, which are now lying with the respondent No. 3, at Wardha and reship the 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 10. 05.01.2023 Vide their email, Asian One requested Maersk Spain to re-check as earlier goods were delivered at Malanpur. Copies of other BL evidencing Malanpur as place of delivery. A7/Pg.140 Pg. 141-144 151 152-155 11. 17.01.2023 to 09.03.2023 Respondent No. 4 transported the Cargo in 50 (fifty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ince 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 charges and demurrage. A 15 /Pg. 165 191 18. 01.06.2023 Vide their e-mail, Respondent No. 4 admitted to mishandling the Cargo by stating that: "... (4) The subject bookings were identified as having a foreign consignee at our pre-Manifest checks. (5) As we per Indian requirement only the Indian consignee or notify party was required to be presented on the bill of lading, we had sent communications with export teams to obtain the local consignee/notify party for these shipments. (6) Even after several follow-ups, we did not find any local customer details, and these shipments were retained on board as per the policy. (7) These shipments were rescheduled again for the imports to India, and again we did a follow up with the origin team but did not get the local customer details. (8) During the second manifestation, these shipments should have been returned to the origin countries, but the user handling these reques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 172 198 23. 18.10.2023 Respondent No. 3 appears to have addressed an e-mail to Respondent No. 4, requesting for an NOC to be addressed to Respondent No. 2 for auction of the Cargo. A 21/Pg. 177 203 24. 30.10.2023 Letter from Custodian to Maersk requesting for NOC to auction the Cargo. A 22/Pg. 179 205 25. 11.10.2023 18.10.2023 26.10.2023 27.10.2023 31.10.2023 09.11.2023 Respondent No. 3 seems to have addressed 6 (six) emails to Respondent No. 4, requesting for details of importer and directing them to file Bill of Entry and to clear the cargo immediately and if there is no response from them, they will proceed as per the Act and auction the Cargo. A 23/Pg. 180 206 26. 06.11.2023 and 07.11.2023 Respondent No. 3 seems to have addressed an e-mail on 06.11.2023 and a letter on 07.11.2023 to the Respondent No. 4 enquiring whether they have contacted the importer and asked them to clear the Cargo. A 24/Pg. 185 A 25/Pg. 186 211 212 27. 01.12.2023 Respondent No. 3 appears to have written to the Respondent No. 4 reiterating what it had stated in its earlier communications, and that if there was no response from the Respondent No. 4 by 15.12.2023, the Cargo would b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required information. A 35/Pg. 199 225 39. 01.03.2024 to 22.03.2024 Several correspondences appear to have been exchanged between the Assistant Commissioner, SIIB and Respondent Nos. 1 to 3 with regards to auction of the Cargo lying at ICD Wardha and drawing of 10 % inventory from the Cargo. A 36/Pg. 201 to A 40/Pg. 205 227 231 40. 03.04.2024 Respondent No. 1 wrote to the Respondent No. 2, with a copy marked to the Respondent No. 3, directing the Respondent No. 2 to issue a notice to the importer under Section 48 of the Act, and to also initiate further action in terms of Para 3(vi) and 3(vii) of Circular No. 49/2018-Customs dated 03.12.2018. A 41/Pg. 209 235 41. 16.04.2024 Respondent No. 2 directed Respondent No. 3 to comply with the directions as set out in the aforementioned letter dated 03.04.2024. A 42/Pg. 210 236 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t No. 3 to submit a detailed explanation on an urgent basis. A 51/Pg. 245 271 51. 19.06.2024 Respondent No. 1 addressed a letter to the Indian Agents of Respondent 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/demur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 5 submit its bid along with EMD of Rs. 50,00,000/-. Pg. 1of Pursis of R/5 66. 06.09.2024 Copy of the auction notice for auction of Petitioner's Cargo as available on the website of MSTC Ltd. Evidencing auction of the Cargo. That 6 parties participated in the said auction process and Vrisa Minerals Pvt. Ltd. (Respondent No. 5) bid was accepted being the highest i.e. Rs. 32,700/- per Metric Ton plus GST. A 62/Pg. 277 296 303 67. 09.09.2024 Respondent No. 5 paid Rs. 53,31,729.00. Letter by the Respondent No. 3 to the Respondent No. 1 (Customs) informing that the Respondent No. 5 emerged as the successful bidder in the auction. Pg 14/ Pursis dated 06.12.2024 68. 18.09.2024 Respondent No. 1 addressed a letter to Respondent No. 4 inter alia observing that Respondent No. 3 has not complied wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12.2024 and 15.12.2024. If the goods are not delivered as per agreed terms, the Respondent No. 5 will have to face the consequences of penalty to the tune of 25% of total value of material. Pg 12-14 of Pursis of R/5 78. 25.11.2024 Challan prepared in respect of payment of duty by the Respondent No3. Pg 22/ Pursis dated 06.12.2024 4.1. The position, as stated by the respondent Nos. 1 and 2 in their submissions, is as under : (A) Steel scrap as detailed below was shipped by one M/s. Gemini Corporation BV from Port of Valencia, Spain to M/s. Maptrasco, another Singapore based entity with Port of Discharge as "Nhava Sheva, India"and Port of Delivery as "Wardha"under following three BLs as detailed under; Sr. No. BL No. No. of Containers Qty in Mts 1 MAEU 222568540 dated 01.12.2022 20 Nos x 20 Ft 506.88 2 MAEU 222568576 dated 01.12.2022 20 Nos x 20 Ft 504.72 3 MAEU 222568555 dated 02.12.2022 10 Nos x 20 Ft 252.22 Total 1263.88 (B) When the Vessel containing above cargo reached Indian shore, the respondent No. 4 Viz. M/s MAERSK filed IGM bearing No. 2331559 dated 04/01/2023 for said 3 B/Ls Bills of Lading No. 222568540, No. 222 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proper officer is satisfied that the arrival manifest or import manifest or import report is in any way incorrect or incomplete, and that there was no fraudulent intention, he may permit it to be amended or supplemented." In this regard the CBIC has also issued circular No. 14/2017 Cus dated 11/04/2017 outlining the process for amendment of IGM. This includes change in importers of address. Therefore, there is no fault on part of respondent Nos. 1 and 2 in allowing the goods unloaded at Indian port. (F) With regard to, public notice Nos.33/2018 dated 07/03/2024 and 154/2018 dated 07/12/2021 issued by JNCH, it is submitted that the Public Notices have been issued for the importer to inform to their exporters to incorporate details such as IEC, GSTN etc. of the importer in the Bill of Lading. Shipping lines are also directed to ensure that the above mentioned requirements are complied. From the Public Notice it is seen that the onus of compliance is put on the Importer and shipping lines. The proper office of customs is required to work in accordance with Section 30 of the Customs Act, 1962 and IGM Regulations mentioned above. (G) It is further submitted that the Importer Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntial to capture basic details of importers in the bill of lading itself, so that such details can be used to decide DPD stacking code and for various other purposes. Therefore, according to him, it is necessary for importing the goods in India, that the importers are required to ensure that the details regarding- (a) import and export Code (IEC); (b) GST identification number (GST-IN) of importer c) official email ID of importer, are to be incorporated in the bills of lading, which is what is laid down in clause 3(i) of the above circular. 5.1. He also invites our attention to clause 3(ii) of the same circular, in which, according to him an obligation is imposed upon the shipping lines operating/functioning at Nhava Sheva to ensure that such details are obtained from the exporters abroad, if such consignment are to be discharged at Nhava Sheva, which is to be indicated in the Import Advance List (IAL) to be submitted to the terminal. 5.2. He further invites our attention to the above said public notice, which contains directions to the importers / custom brokers to ensure that the said requirement are complied with. The directions as contained in public notice No. 33/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proper officer an arrival manifest or import manifest by presenting the same electronically prior to the arrival of the vessel, failure to do which, has been made liable for penalty nor exceeding Rs.50,000/-. Sub Section 3 of Section 30, 15 according to him, empowers the proper officer, to permit the arrival or import manifest to be amended, if he finds that it is incorrect or incomplete. 5.7. He further invites our attention to the provisions of Section 31 of the Customs Act, which mandate that the master of the vessel would not permit the unloading of any imported goods until an order has been given by the proper officer granting entry inwards to such vessel which has to be only after, an arrival or import manifest has been delivered to the proper officer to his satisfaction. He further submits that Section 31 of the Customs Act, which mandates that no imported goods required to be mentioned under the regulations in an arrival manifest or import manifest, shall, except with the permission of the proper officer, be unloaded at any customs station unless they are specified in such manifest, indicates that it is necessary even before the vessels sails from the point of exportin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which lays down the procedure in case the imported goods are not cleared for home consumption within 30 days and the duty of the custodian to give notice to the owner before the custodian would be entitled to sell the goods and as no such notice was given to the petitioner, who is the owner of the goods, the further action of sale of the goods was non est and bad in law. 5.12. He also submits that no permission from the customs was obtained prior to conduct of such sale due to which also the sale would be without any legality. 5.13. He further places reliance upon Section 150 of the Customs Act, which prescribes the procedure of sale and according to him, a notice to the owner before conducting such sale, which according to him is absent. He further relies upon Section 150 (2) (d) of the Customs Act to contend that in the procedure of sale the customs are not involved but it is the custodian which does all these acts and therefore is under a statutory obligation to ensure compliance with the requirements therein. 5.14. He also relies upon Regulation 2/3 of the Uncleared Goods (Bill of Entry) Regulations, 1972 and Form 60 to contend that even after the sale, there has to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction had taken place, which stands vitiated. He further submits that even if auction has been conducted, the sale proceeds thereof need to be handed over to the petitioner, as the custody of the goods by the custodian was an invalid custody, on account of which, the custodian/respondent No. 3 was not entitled to any charges under Section 150 (2) (d) of the Customs Act and therefore, the sale price was liable to be paid to the petitioner. 6. Mr. Akshay Naik, learned Senior Counsel for the respondent No. 3/custodian submits that remedy of the petitioner is not by way of invoking the writ jurisdiction of this Court under Article 226 of the Constitution, as the petitioner claims that the respondent No. 4/Maersk, who was the Shipper, has played a fraud upon the petitioner by unloading the goods at Nhava Sheva port when right from the beginning respondent No. 4/ Maersk was aware that there was no Indian Importer, who was the consignee and therefore, the goods were not destined for transportation and unloading to India in which situation, since there were disputed questions of fact, this Court should decline to interfere. 6.1. He further contends that the plea raised by the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent No. 3 by payment of the custom duty for home consumption, the goods continued to remain in custody of the respondent No. 1 and in fact there is no unloading as is being sought to be claimed. He further invites our attention to the reply by the respondent Nos. 1 and 2 dated 16/12/2024 specifically paras 7A to 7J, which according to him, indicate the narration of events, so far as the respondent Nos. 1 and 2 are concerned. 6.4. He further invites our attention to the e-mail dated 18/04/2023 (Pg.160) to contend, that throughout the petitioner as well as the respondent No. 4/shipper as well as Maptrasco, were aware of the factual position that the goods were lying at the Dry Port at Wardha with the respondent No. 3, for which the ground rent was liable to be paid. The e-mail, according to him, also indicates the intention of the petitioner and Maptrasco to find a new consignee for the consignment. He further invites our attention to the documents annexed to the pursis dated 06/12/2024 Stamp No. 07/2024 filed by respondent No. 3, in which document No. 1 is an e-mail dated 04/05/2023 written by the respondent No. 3 to Maptrasco, with a copy to the petitioner claiming rental ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that no fault can be found with the order dated 09/08/2024 by the Customs, which granted approval for auction of the goods which is indicated by the covering letter of the same date in pursuance to the request for auction by the respondent No. 3 dated 08/08/2024 (pg.276). 6.6. In response to the plea by the learned counsel for the petitioner that the auction was cancelled, the learned Senior Counsel for the respondent No. 3 invites our attention to the pursis dated 06/12/2024 and the document dated 18/09/2024, by which the Customs had intimated anomalies in the notice of auction on account of it not being served upon the petitioner and the reply of the respondent No. 3 dated 17/10/2024 (pg.18) of the pursis clarifying the position, accepting which, by an order dated 06/11/2024 the respondent No. 2, had granted approval to file Bill of Entry in terms of Para (xv), (xvi-a) and (xvi-b) of CBIC Circular No. 49/2018 dated 03/09/2018 (pg.20 of pursis), in pursuance to which, by the communication dated 22/11/2024 a Bill of Entry for the auction was submitted by the respondent No. 3 consequent to which the challan for the payment of IGST was generated on 25/11/2024 (pg.25 of pursis). He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel appearing for the respondent No. 5, the auction purchaser, adopts the arguments of Mr. Akshay Naik, learned Senior Counsel for the respondent No. 3 and also invites our attention to the auction notice dated 20/08/2024 (Pg.299), to point out that it was open for inspection from 23/08/2024 to 05/09/2024 and the auction was held on 06/09/2024, in which six parties participated, out of which the respondent No. 5 was the highest. On 04/09/2024, the respondent No. 5 had deposited Rs. 50,00,000/- as EMD, after acceptance of his bid, a further amount of Rs. 53,31,729/- came to be deposited on 5 09/09/2024 and the balance of Rs. 3,89,21,687/-, came to be paid to the respondent No. 3 on 20/09/2024 which amount includes GST after which the respondent No. 5 has been continuously communicating with the respondent No. 3 for release of the goods in its favour, as the respondent No. 5, in turn, has already entered into a contract with EVEONITH Value Steel Wardha on 23/11/2024, in terms of which, there is a condition for penalty on account of late delivery of the goods therefore, the respondent No. 5 was being put to loss due to the delay occasioned for release of the goods. 8. Mr. S.N. Bhatta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Senior Counsel for the petitioner, in rebuttal, submits that the contention of the respondent No. 3 that the goods were not unloaded is factually incorrect, as consequent to the discharge of the goods at Nhava Sheva Port by the respondent No. 4/Maersk they come into the control of the Customs and upon the transshipment, to ICD Wardha in the control of the respondent No. 3, which is subject to the directions of the respondent Nos. 1 and 2 i.e. the Customs. Therefore, to say that the goods are not unloaded, is incorrect. 9.1. He also relies upon the language of Section 45 of the Customs Act, which speaks about unloading all imported goods in the Customs area, which are to remain in the custody of a person to be approved by the Customs, which in this case is the respondent No. 3 as the custodian, unless they are cleared for home consumption. 9.2. He further invites our attention to the document at page 166 which is an e-mail by the respondent No. 4/Maersk dated 01/06/2023 indicating that on the first occasion when the goods were brought to India on account of absence of an Indian consignee they were taken back. The shipment was again rescheduled for import to India and on the sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed it to be unloaded. Insofar as the delay is concerned, he submits that the petitioner has been continuously following up with the respondent No. 4 as well as the respondent Nos. 1 and 2, on account of which, the delay ought not to come in the way of the petitioner in grant of the relief which is being sought. It is his contention, that the claim of the petitioner is based upon the requirement as indicated in Public Notice No. 33/2018 dated 07/03/2018. 9.7. He fairly submits, that considering the passage of time and the fact that auction has already taken place, all that is now permissible for the petitioner is to seek enforcement of the claim to the auction money and the claim for reshipment of the goods back to its point of origin, is not been pressed by him upon instructions of the petitioner, which statement is accepted as a statement to the Court. 10. Mr. Akshay Naik, learned Senior Counsel for the respondent No. 3, submits that the Sea Cargo Manifest and Transhipment Regulations, 2018 which have been brought into force from 01/08/2018, were amended and brought into force w.e.f. 01/08/2019, however, in view of Regulation 15, the implementation thereof, has been postponed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an affidavit of the respondent No. 3, which states that auction money which has been received by respondent No. 3, has been expended by it towards various expenses incurred by the respondent No. 3 as it continues to suffer from severe financial distress. The affidavit is taken on record. The affidavit, however, gives an undertaking, to deposit the money in the Court by liquidating the assets, which are owned and possessed by the respondent No. 3, in case the result of the petition is against the respondent No. 3. This position ought to have been brought to our notice yesterday itself before the order dated 17-12-2024 was passed. However, considering the circumstances, we modify paragraph No. 2 of the order dated 17-12-2024 and direct that the auction money received by the respondent No. 3 exclusive of the IGST, shall be deposited by the respondent No. 3 in this Court by 15-1-2025. The order dated 17-12-2024, stands modified to the above extent." 12. What is necessary to be considered is whether the goods were in fact destined for India or there was a mistake in the delivery of goods by the respondent No. 4/Shipper at Nhava Sheva Port, so as to entitle the petitioner to claim a mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... identification number (GSTIN) of the importer and (c) Official e-mail id of the importer, were directed to be supplied by the importers to their exporters, so that they could be included in the Bills of Lading at the time of booking of such consignments, which was to be applicable w.e.f. 01/04/2018. This has been reiterated in Public Notice No. 154/2018, dated 07/12/2018, wherein Public Notice No. 33/2018 has been referred to in para 2, and it has been stated that the full description of goods, correctly and completely has to be ensured in both the Bills of Lading and the Import General Manifest, which is required to be filed in terms of Section 30 of the Customs Act. The respondent Nos. 1 and 2, vide pursis dated 10/12/2024, (Stamp No.08/2024) have stated that declaration of name of importer is mandatory at the time of unloading the consignment at the port (ICD Wardha herein) before submission of Bill of Entry in terms of Section 46 of the Customs Act for clearance of goods. What is material to note is that neither Public 15 Notice No. 33/2018; Public Notice No. 154/2018 nor the pursis referred to above, indicate that any penalty has been prescribed for the Bills of Lading and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of the Sea Cargo Manifest and Transhipment Regulations, 2018, 15 Regulation 4 of which requires an authorized sea carrier carrying imported goods to deliver the arrival manifest to the proper officer electronically. Regulation 4 being material is reproduced as under : "4. Delivery of an Arrival Manifest. - (1) An authorised sea carrier carrying imported goods, export goods or coastal goods, shall deliver the arrival manifest to the proper officer electronically: Provided that where it is not practicable to deliver the arrival manifest or any part thereof electronically, then the manifest or any part thereof shall be submitted manually in duplicate with the approval of the Commissioner of Customs or any other officer authorized by him: Provided further that for the vessels carrying only coastal goods and operating from exclusive berths meant for coastal goods at the loading as well as the unloading ports, there shall be no requirement of delivering arrival manifest.; (2) The arrival manifest shall consist of, - (a) an application for entry inwards in Form-II (except in case of vessel carrying exclusive coastal goods); (b) a general declaration in Form-III; (c) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Regulation 4 (2) (e) (i) of the Regulations of 2018, the furnishing of such information in the Arrival Manifest, would be necessary. It is also necessary to note that Regulation 11 empowers the jurisdictional Commissioner of Customs to suspend or revoke the registration of an authorized carrier on failure to comply with any of the provisions of the Regulations of 2018 and Regulation 13 provides for the imposition of penalty, for non-compliance thereof, indicating the mandatory nature of these Regulations of 2018. The compliance with the requirement of these Regulations of 2018, which relate to the directions as contained in Public Notice Nos.33/2018 and 154/2018, will have to be held to be mandatory, however, w.e.f. 31/11/2024, for the reasons indicated below. 13.4. In the above contextual background what is material to consider is that these Regulations of 2018, though have come into force w.e.f. 01/08/2019, however, on account of the Transitional provisions, as contained in Regulation 15, they were not been implemented, as by way of the Transitional provisions, it was permissible for the authorised sea carrier to continue to deliver the cargo declaration in Form III of the Impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng an Indian Party was mandatory, at that point of time, when the Arrival manifest was lodged with the Customs or the consignment was discharged at Nhava Sheva, India, on account of the fact that GSTIN number could be granted only to an Indian National. Of course, after 31/11/2024, the compliance with the requirements of Form Form VI A, in terms of Regulations 4 (2) (e) (i) of the Regulations of 2018, will have to be done by any consignee/importer, in its strict sense. 14. That takes us to the contention that the goods were not destined for being shipped to India and therefore, ought not to have been permitted to be unloaded by the respondent Nos. 1 and 2 or for that matter transshipped to ICD Wardha. This need not detain us long, for the reason that the sales contract between Maptrasco and the petitioner dated 25/08/2022 (pg.81), itself indicates that the port of discharge of the consignment/cargo was Nhava Sheva/ Mundra, India and the Commercial Invoices dated 20/11/2022 (Pgs.82, 84 and 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, rejected. 15. It is also necessary to note that the petitioner itself has come with a case as indicated in para 17 of the petition that the respondent No. 4, by misrepresentation and fraud, had entered the name of a third party, namely M/s Rathi Iron and Steel Industries, Pithampur, as the consignee, in the import documents, on account of which the consignment/cargo got discharged at Nhava Sheva, for which reliance is placed upon the Import Tax Invoice bearing No. 5123354121, (pg.149); Invoice No. 5123354120 (pg.152) both dated 10/12/2022 and Invoice No. 5123472603 dated 22/03/2023 (pg.155) which are in the name of M/s Rathi Iron and Steel Industries, Pithampur. The e-mail dated 01/06/2023 (pg.166) by the respondent No. 4, to the petitioner, would indicate that on a previous occasion as local customer details were not found, the consignment/cargo was retained on board and was re-scheduled again for import to India, at which time also the same discrepancy was found due to which they should 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 resulte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e arrival of the conveyance in which the said goods were carried." A perusal of the language of Section 45 of the Customs Act, would point out that though the goods are discharged at the port and though they may be transhipped to a dry port, in this case ICD at Wardha, they remain in the custody of the Customs, though the physical possession may be with such person as may be approved by the Officer Authorised in that behalf, in this case the respondent No. 3, as they cannot be removed by the consignee or the importer, unless the procedure for clearance of goods as contained in Sections 46 and 47 of the Customs Act is complied with. Section 46 (1) mandates that the importer of goods for home consumption, shall present to the proper officer, a bill of entry, in such Form as may be prescribed, before the end of the day, on which the vessel or vehicle carrying the goods arrives at a customs station at which such goods are to be cleared for home consumption, as provided for in Section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ha, between 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 communication dated 08/08/2024 (pg.275) by the respondent No. 3 to the respondent No. 2, indicates that the respondent No. 2, had at the request of the petitioner, by its letter No. VIII(Cus) 2591/SHB/2023 dated 26/07/2024, granted final extension of time to clear the goods till 07/08/2024, however, in spite of the same, the petitioner had not filed the Bill of Entry within the time frame granted to it, in view of which, permission was sought by the respondent No. 3, for auctioning the goods. It is equally an admitted position, 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice to the importer and not to the owner. The Bills of Lading, do not show, the petitioner as the consignee or importer. All that it shows is that the petitioner was to be notified in respect of the consignment/goods. The Bills of Lading, also indicate that the first party to be notified was Maptrasco. It is Section 150 (1) of the Customs Act, which prescribes the procedure for sale of goods, which contemplates a notice to the owner. The purpose of a notice is to bring to the knowledge of a person to whom it is addressed a certain set of facts, for such person to act upon. If such knowledge is attributable to such person, by any other mode or manner, then the plea of absence of a notice may not be sustainable in law. In this context, it is necessary to note that receipt of the e-mail dated 09/07/2024 (pg.252) issued by the Assistant Commissioner, Customs Commissionerate to the petitioner, intimating it, that the custodian/respondent No. 3 vide its letter dated 05/07/2024 (copy 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 Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any cancellation, rather it only expresses the apprehension of the respondent Nos. 1 and 2, regarding the anomalies, which it claims to have noticed in the process, including an apprehension regarding serving a notice of the auction in terms of Section 150 (1) of the Customs Act. The respondent No. 3, by its reply dated 17/10/2024 (pg.18 of pursis dated 06/12/2024) gave a clarification, being 15 satisfied with and accepting which the respondent No. 2, by his order dated 06/11/2024, granted approval to file a bill of entry, the same came to be submitted on 22/11/2024, as a result the Chalan for payment of the IGST was generated on 25/11/2024. The plea that the permission for auction was cancelled therefore cannot be accepted. 20. We, therefore, find that the action of the respondent Nos. 1 and 2, permitting the goods to be auctioned and that of the respondent No. 3, in auctioning the goods, in view of the above discussion, cannot be faulted with. For the same reasons, we also hold 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "37. We have already referred to a number of decisions wherein the law has been clearly laid down that even if the importer is not at fault, it is the importer alone who is liable to pay the demurrage charges. As far as detention charges are concerned, this is a private contract between the importer and the carrier i.e. shipping line. The DRI/Customs Authorities can be directed to pay the demurrage/detention charges only when it has proved that the action of the DRI/Customs Authorities is absolutely mala fide or is such a gross abuse of power that the officials of the DRI/Customs should be asked to compensate the importer for the extra burden which he has to bear. Even if an importer feels that it has been unjustly dealt with, it must clear the goods by paying the charges due and then claim reimbursement from the Customs Authority." 22. It is, therefore, manifest, that the primary responsibility for payment of the rent/demurrage charges is that of the importer, who obviously would be the person claiming title to the goods, which in the present matter is the petitioner. In fact, as indicated above, in its e-mail dated 15/05/2024, (pg.212) the petitioner, itself has not only claim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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