Bombay High Court
Blue Spring Fze And Anr vs Union Of India And 6 Ors on 8 October, 2021
Author: M.S.Karnik
Bench: Dipankar Datta, M.S.Karnik
6. wp 1394.21.doc
Urmila Ingale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
Digitally signed
by URMILA
URMILA PRAMOD
INGALE
PRAMOD Date:
INGALE 2021.10.08
17:53:25
+0530
WRIT PETITION NO. 1394 OF 2021
Blue Spring FZE and anr. .... Petitioners
Vs.
Union of India and ors. ..... Respondents
Mr.Prithviraj Choudhari i/b Mr.P.K. Shetty, for the
Petitioners.
Mr.Jitendra Mishra a/w Mr.Satyaprakash Sharma, for the
Respondents No. 1 to 5.
CORAM : DIPANKAR DATTA, CJ &
M.S.KARNIK, J.
DATE: OCTOBER 8, 2021 P.C. :
1. The petitioners by this petition seek a mandamus directing respondents no.3 and 5 to permit the amendment to IGM No. 2153793 dated December 16, 2016 and to allow the name of the consignee to be changed from M/s.Venture Impex to M/s.Amit Petrolubes Pvt. Ltd. The petitioners have prayed for further consequential reliefs.
2. It is the case of the petitioners that they are primarily engaged in the business of import and export of 1/6
6. wp 1394.21.doc various products. One M/s.Venture Impex entered into an agreement with the petitioner no.1 for purchase of Rubber Processing Oil (RPO) sometime in December 2016 for supply of 493.967 metric tonnes of 'RPO'. We do not wish to burden this order with detailed facts at this juncture.
The petitioner no.1 claims to be the unpaid seller. M/s.Venture Impex (importer) filed a bill of entry in respect of the said goods. The goods were not cleared from December 27, 2016 till the date of filing of the petition by M/s.Venture Impex nor any attempt made to clear the cargo with respondent no. 7 and no delivery order was issued in their favour for release of the cargo. The petitioners therefore secured a buyer and entered into a contract in the month of October 2019 with M/s.Amit Petrolubes Pvt. Ltd who were ready and willing to clear the cargo on payment of all dues. The petitioners informed respondent no.7 about the change in the name of consignee. Respondent no. 7, on the instructions of the petitioner no.1 issued a fresh bill of lading with original date, in favour of M/s.Amit Petrolubes Pvt. Ltd. as the 2/6
6. wp 1394.21.doc consignee, along with modified shipping documents. On receipt of the said application, respondent no. 5 by its letter dated November 18, 2019 intimated M/s.Venture Impex regarding the said application and requested for proof of ownership from them. M/s.Venture Impex merely submitted the copies of the earlier bill of lading and invoices issued by respondent no. 6.
3. It is the contention of the learned counsel for the petitioners that the respondent no. 5 failed to process the application for change in the name of consignee in the said IGM in terms with section 30(3) read with section 149 of the Customs Act, 1962. Accordingly, petitioners, vide letter dated December 2, 2020 once again requested the respondent no. 5 to permit the amendment in the IGM. The grievance of the petitioners is that instead of exercising the discretion permitting amendment of the application, respondent no. 5 proceeded to take steps for auction of aforesaid cargo.
4. Reliance is placed by learned Counsel on the decisions of this court in support of his contention that if the original 3/6
6. wp 1394.21.doc consignee has abandoned the imported goods and not made any claim towards it for long period of time, respondents will not be justified in insisting for obtaining NOC from the original consignee. The decisions being i) Rakesh Dhir Vs. Union of India1 ii) Glencore Agriculture India Pvt. Ltd. Vs. Union of India2 and iii) Agrocorp International PTE. Ltd. Vs. Union of India3. In the case of Rakesh Dhir (supra), this court in paragraph 15 observed thus:
"15. It is now well settled that the power of judicial review of the Court under Article 226 of the Constitution of India includes all cases where the orders are passed by the authorities or even where the authorities have failed to exercise jurisdiction vested in them. It may be stated that the statutory discretion cannot be fettered by self-created rules or policy. Although it is open to an authority to which discretion has been entrusted to lay down the norms or rules to regulate exercise of discretion, it cannot, however, deny itself the discretion which the statute requires it to exercise in individual cases. The proper authority notwithstanding public notice dated 14th January, 2010 is required to consider the prayer of the petitioner on its own merits well within the scope of sub- Section 3 of Section 30 of the Customs Act, by a reasoned order hearing all parties following principles of natural justice. The proper officer has failed to exercise the statutory discretion on well recognized judicial parameters."
1 2010(252)E.L.T.173(Bom.) 2 2018(362)E.L.T. 81 (Bom.) 3 2017(349) E.L.T. 34 (Bom.) 4/6
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6. In paragraph 8 of the decision in the case of Agrocorp International PTE. Ltd. (supra), this Court has held thus :
"8. After perusal of the writ petition and all annexures thereto, we are of the opinion that it is entirely for the authorities to act in terms of the powers conferred by the Act of 1962. The authorities cannot refuse to act merely because there is an allegation of a wrongful act or there is a protest raised. There is nothing in the Act of 1962 which would enable the authorities to adjudicate any civil dispute and as if it is a Court of law. It is best left to a competent Civil Court. The Customs officers should not be entering that arena. More so, when on instructions, the petitioners counsel states that they will indemnify the authorities against all claims which are raised by any party and particularly relating to the title to the goods in question. In the circumstances, all the more, we do not think that the request should be kept in abeyance."
7. Learned counsel for the Customs, Mr.Mishra justified the decision to auction the goods as bill of entry was already filed by M/s.Venture Impex. According to Mr.Mishra this is not a case of abandonment of goods on the part of M/s.Venture Impex.
8. In our opinion, considering the law laid down by this court, it would be in the interest of justice if the Competent Authority viz. the Joint or the Assistant Commissioner of 5/6
6. wp 1394.21.doc Customs grants a personal hearing to the petitioners and considers the prayer of the petitioners on its own merits well within the scope of sub-section 3 of section 30 of the Customs Act, by a reasoned order after hearing all parties following principles of natural justice. The application made for amendment or substitution to the Import General Manifest be considered in accordance with law expeditiously and in any event with a period of 6 weeks from October 20, 2021 after hearing all parties. The petitioners to appear before the Competent Authority on October 20, 2021 at 11.00 a.m.
9. Needless to mention that till such time the decision is taken on the application for amendment and till further orders are passed by this court, the respondents are restrained from taking any further action for auction of the goods.
10. List this writ petition on December 3, 2021.
11. Parties to act upon authenticated copy of this order.
(M.S.KARNIK, J.) (CHIEF JUSTICE)
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