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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR
AVINASH G. GHAROTE, ABHAY J. MANTRI, JJ.
Asian One Pvt Limited - Appellant
Versus
The Commissioner Of Customs - Respondent
WRIT PETITION NO.6520/2024
Decided On : 13-01-2025
(A) Customs Act, 1962 - Sections 30, 31, 45, 46, 48, and 150 - Writ of mandamus sought to recall auction permission and reship cargo - Petitioner claimed ownership of cargo but failed to file Bill of Entry for clearance - Customs allowed auction due to non-compliance - Auction conducted legally after due notice - Petitioner’s claims of fraud and improper unloading rejected as unsupported by evidence. (Paras 1-23)
(B) Importer’s obligations - The importer must ensure compliance with customs regulations and file necessary documentation for clearance - Failure to do so results in liability for demurrage and auction of goods. (Paras 12-23)
(C) Auction process - Proper procedure followed under Section 48 of the Customs Act, including notice to the importer - Auction proceeds subject to claims of custodian and customs duties. (Paras 21-23)
JUDGMENT :
AVINASH G. GHAROTE, J.
1. Heard. Rule. Rule made returnable forthwith with the consent of the learned Counsels for the respective parties.
2. Heard Mr. V.S. Sridharan, learned Senior Counsel for the petitioner; Mr. S.N. Bhattad, learned counsel for the respondent Nos.1 and 2; Mr. Akshay A. Naik, learned Senior 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 SteelScrap 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 detention charges, cargo demurrage charges or auction chargespayable or demandable by any of the respondents.
4. The facts leading to the present petition, as agreed to by Mr. V.S. Sridharan, learned Senior Counsel for the petitioner and Mr. Akshay Naik, the learned Senior Counsel for the respondent No.3 are summarized as under :
| Sr. No. | Date | Particulars | Ref.Annex./ Pg. | PD F Pg. | |||||||||||||||||||||||||
| 1. | 25.08.2022 | Pursuant to an order placed by Petitioner (as buyer) with Maptrasco (as seller) under a Sale Contract dated 25.08.2022, a consignment of 1263.880 MTS of Shredded Steel Scrap ISRI 211 Grade (“Cargo”) was shipped by Gemini Corporation B.V. (“Gemini”) from the Port of Valencia, Spain to Jawaharlal Nehru Port, Mumbai, India (“JNPT”) by sea, and thereafter by rail to Respondent No.3’s ICD at Wardha (“ICD Wardha”), under three (3) Bill(s) of Lading (“BL”) issued by the Singapore based agents of Respondent No.4. | A1/ Pg. 81 | 92 | |||||||||||||||||||||||||
| 2. | 01.12.2022 & 02.12.2022 | Three BL were issued by Singapore based agents of Respondent No.4 with the following details: -
| A2/ Pg.89 A3/Pg. 101 A4/Pg. 113 | 100 112 124 | |||||||||||||||||||||||||
| 3. | 10.12.2022 | Unbeknownst to the Petitioner, Respondent No.4 deliberately and fraudulently entered thename of a third party, one ‘M/s. Rathi Iron and Steel Industries, Pithampur’ in the import documents and while so doing, wrongfully entered the place of delivery asDhannar, Madhya Pradesh in two of theInvoices. | A10 /Pg.149 Para 17 /Pg. 14 | 175 25 | |||||||||||||||||||||||||
| 4. | 21.12.2022 | Prior to the arrival of the Cargo at JNPT, thePetitioner, in its capacity as the owner of theCargo, had addressed an email to Singaporebased agents of Respondent No.4, requestingfor an amendment to the BL and import documents and that the Cargo be carried to an ICD in Malanpur, rather than ICD Wardha. | A5/Pg.137 | 148 | |||||||||||||||||||||||||
| 5. | 21.12.2022 | Vide their email, Singapore based agents ofRespondent No.4 refused to make theamendment stating that custom importmanifest had been filed at destination and requested Petitioner to contact Respondent No.4 for the same. | A5/Pg.137 | 148 | |||||||||||||||||||||||||
| 6. | 04.01.2023 | Petitioner once again addressed an email to Singapore based agents of Respondent No.4, requesting for issuing switch BL and for changein 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 | |||||||||||||||||||||||||||
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