TMI Blog2004 (1) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... re informed the petitioner that the said Shiv Ganga Organic Chemicals had not made any payment for the goods and the goods were already lying in the container depot, Tughlakabad. The goods, had been imported into India in February, 2001. The original documents including the Bills of Lading in respect of the said goods had also been returned by the Bank to the said Allied Deals, Singapore. The petitioner agreed to the proposal. The petitioner paid for the goods and the original Bills of Lading were endorsed by the supplier in favour of the petitioner. 5.By a letter dated 23-3-2001 the petitioner applied to the Deputy Commissioner IGM (Import General Manifest) for a change in the name of the importer in the import general manifest. This application was necessitated because the original import general manifest had the name of the original consignee i.e. Shiv Ganga Organic Chemicals Limited. The Deputy Commissioner permitted the change in the name of the importer in the Import General Manifest. However, in the counter affidavit filed on behalf of respondents 1 to 3, it is stated that this permission for change the name of the importer was done as the Deputy Commissioner was not aware ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel submitted that under Section 110(2) of the Customs Act, 1962, if in respect of seized goods a show cause notice is not issued within a period of six months such goods are liable to be returned. He further submitted that this period of six months can be extended by the Commissioner up to to a maximum period of one year. Since no show cause notice had been issued in this case the goods are clearly liable to be returned to the petitioner who is the legitimate owner of the goods inasmuch as the Bill of Lading is endorsed in its name. The Bill of Lading is a document of title and is in favour of the petitioner as aforesaid and, therefore, the petitioner is the owner of the goods in question. 8.On the other hand, learned Counsel for the respondents, Mr. Satish Agarwal, submitted that it is not correct that no show cause notice had been issued. He referred to the show cause notice dated 1-3-2002 which had been issued to Shiv Ganga Organic Chemicals Limited. Therefore, he submitted that it is incorrect on the part of the learned Counsel for the petitioner to state that no show cause notice was issued. However, a perusal of the show cause notice dated 1-3-2002 which had been issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rganic Chemicals Ltd. are related to each other in any manner. 10.Mr. Asthana relied upon the following decisions :- 1. Union of India v. Sampat Raj Dugar : 1992 (58) E.L.T. 163 (S.C.) 2. Savitri Electronics Co. v. Collector of Customs : 1992 (62) E.L.T. 395 (CEGAT) and 3. Bin Sabt Jewellery v Commissioner of Customs, New Delhi : 2000 (120) E.L.T. 169 (CEGAT). The aforesaid decisions were cited by Mr. Asthana for the proposition that if an importer does not pay for the goods the supplier continues to remain the owner of the goods and that he can transfer the document off title to another person and thereafter that other person will be entitled to clear the goods. 11.Mr. Asthana also relied upon the decision of this Court in Om Petro Chemicals v. Union of India : 2002 (140) E.L.T. 353 (Del.) for the proposition that the demurrage charges and container charges ought to be borne by the Customs Authorities in the circumstances of the present case. 12.In the case of UOI v. Sampat Raj Dugar (supra) the Supreme Court considered the question of title of the goods in the case of imports and particularly where the importer abandons such goods and does no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with such a situation that we are concerned in this case and our decision is also confined only to such a situation. Condition (ii) in sub-clause (3) of Clause 5, in our opinion, does not operate to deprive the exporter of his title to said goods in such a situation.'' In this view of the matter, applying this principle to the facts of the present case, we find that the goods were originally imported by Shiv Ganga Organic Chemicals Ltd. on cash against delivery basis. These goods landed in India sometime in February, 2001. The import of these goods was not contrary to law. However, the said Shiv Ganga Organic Chemicals abandoned these goods and did not make any payment for the same. Clearly, the title in the goods in such a situation remained with the foreign supplier, i.e. Allied Deals, Singapore and it was well within its rights to enter into the transaction with the petitioner. Since the goods were transferred to the petitioner and the petitioner held the document of title in respect thereof the petitioner was clearly within the definition of ''importer'' as provided under Section 2(26) of the Customs Act and was, therefore, entitled to present the Bill of Entry and to have t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hiv Ganga Organic had even filed the Bill of Entry for clearance of the goods. This submission of the learned counsel for the respondents cannot be accepted. The fact of the matter remains that Shiv Ganga Organic Chemicals did not pay for the goods. The Bill of Lading which is the document of title had also been returned by the Bank to the foreign supplier, i.e. Allied Deals, Singapore. As such, Shiv Ganga Organic Chemicals Ltd. was not the owner of the goods and the title in the goods vested in the foreign supplier. The position is the same as in the case before the Supreme Court and the said decision would clearly have application in the facts and circumstances of the present case. 15.Coming to the question of demurrage, having already held that the petitioner is entitled to clear the goods and that the import is valid in law the question arises as to who shall bear the burden of demurrage. Is it to be borne by the petitioner or is it to be borne by the Customs Authorities. A Division Bench of this Court while considering this very question in the case of Om Petro Chemicals v. UOI : 2002 (140) E.L.T. 353 (Del.), held as under :- Would that however mean that the"23. petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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