Bombay High Court
J.J. Polyplast Private Ltd. And 2 Ors vs The Ministry Of Shipping Through The ... on 30 June, 2015
Author: G.S.Kulkarni
Bench: S.C.Dharmadhikari, G.S.Kulkarni
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WP2973.14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
IN ITS EXTRA-ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS JURISDICTION UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA
WRIT PETITION NO.2973 OF 2014
1. J.J.Polyplast Private Ltd }
a company incorporated under the
Companies Act, 1956 and having its
registered office at C-206,2nd Floor, }
Ghatkopar Industrial Estate,L.B.S.
Marg, Ghatkopar (W) Mumbai-400 086
}
2. Aishwarya Plast Exports Private Ltd
a company incorporated under the
Companies Act, 1956 and having }
its registered office at C-206, 2nd Floor
Ghatkopar Industrial Estate,L.B.S.
Marg, Ghatkopar (W) Mumbai-400 086 }
3. Mr.Sanjesh Jain
Director, J.J.PolyImpex Pvt.Ltd }
and authorised signatory of
Aishwarya Plast Exports Pvt
Ltd, having address at F-702, }
Magnolia Mayura CHS Ltd,
Magnolia Enclave, Nahar Amrit
Shakti, Chandivali,Andheri (E) }
Mumbai-400 072.
vs
1. The Ministry of Shipping }
Through the Mercantile Marine
Department, Old C.G.O.Building,
101, Maharshi Karve Road, }
Mumbai-400 020
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WP2973.14
2. Directorate General of Shipping }
2nd Floor, Jahaz Bhawan,
Walchand Hirachand Marg,
Ballard Estate, Mumbai-400 008 }
Through Director General of Shipping
3. Jawarharlal Nehru Port Trust }
Nhava Sheva, Navi Mumbai
Maharashtra-400702
Through the Chairman }
4. Commissioner of Customs (Import)
Jawaharlal Nehru Customs House,
ig }
Sheva Taluka Uran
District Raigad
Maharashtra-400 707. }
5. The Union of India,
Through the Department of
Revenue, Ministry of Finance, } ..Respondents
New Delhi.
...
Ms.Divya Bahl a/w Ms.Peppino Bahl Advocates
for Petitioners
Mr.Pradip S.Jetley a/w Ms.Purnima Swasthi
Advocates for Respondents
...
CORAM: S.C.DHARMADHIKARI AND
G.S.KULKARNI, J
DATE: 30TH JUNE
2015
ORAL JUDGMENT (Per G.S.Kulkarni, J)
1. The petitioners who are importers and who claim to deal in plastic raw materials have filed this petition under Article 226 ::: Uploaded on - 08/07/2015 ::: Downloaded on - 10/09/2015 19:42:05 ::: Rng 3 WP2973.14 of the Constitution of India seeking a direction to the respondents to take appropriate legal action against the shipping lines so as to enforce the terms of the facility Notice No.69 of 2011 dated 20 May 2011 issued by the respondent no.4.
1. It is the case of the petitioners that respondent no.4 to facilitate seamless container movement operations from the Port to the Container Freight Station (for short 'CFS') had issued facility notices from time to time. These facility Notices are issued after undertaking a consultative process with the concerned stake holders.
Facility Notice no.61 of 2007, provides for a mail based procedure for monitoring the movement of imported containers from the Port to a CFS. Thereafter, facility notice No.21 of 2008 came to be issued whereby the procedure for movement of import cargo in containers from the port to the CFS came to be prescribed. Facility Notice No.21 of 2008 came to be further modified by facility Notice No.69 of 2011. By this facility Notice it was informed that all shipping lines/Steamer agents would be required to compulsorily indicate in ::: Uploaded on - 08/07/2015 ::: Downloaded on - 10/09/2015 19:42:05 ::: Rng 4 WP2973.14 the (Import General Manifest) against each line the name/code of the Container Freight Station opted and intimated by the importer/Clearing House Agents for delivery of the imported goods.
For this purpose, the importer/Clearing House Agents were advised to indicate shipping lines/Steamer agents about their option of the destination CFS, atleast 72 hours prior to the arrival of the vessel. It was informed that where the intimation regarding the destination CFS was not received from the importer/Clearing House Agents prior to 72 hours of the arrival of the vessel, the shipping/Steamer agents may declare name of any one Container Freight Station in the IGM where all such unlisted containers can be transported for delivery and inform such CFS accordingly. The other procedure as informed in the earlier facility Notice No.6 of 2007 and 21 of 2008 was maintained. It was further informed that any difficulties faced in the implementation of these facility Notices may be brought to the notice of the respondent no.4. It is this facility Notice the petitioners urge that the respondents are required to enforce.
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3. It is the petitioner's case that in regard to imports as undertaken by them, the petitioners have adhered to the terms and conditions of these facility notices and that the shipping lines were accordingly intimated by them of the CFS as selected by the petitioners where the imports would be required to be taken on their arrival at the Port till the goods are cleared. It is the petitioner's case that the shipping lines are not strictly adhering to the facility notices issued by respondent no.4 and various difficulties are faced by the petitioners leading to the additional charges being required to be paid in clearing of the goods. Some of the conditions which are not acceptable to the petitioners and being foisted on the petitioners by the shipping lines are listed in paragraph 3 (vi) at page 11 of the petition. To name some of them are the requirement to surrender the original Bill of Lading duly discharged three days within (72 hours) prior to the filing of the Import General Manifest (IGM);
payment of all terminal charges and other charges; a blank undated cheque to cover port ground rent and other charges such as shifting etc; submission of individual container bond shipment wise, ::: Uploaded on - 08/07/2015 ::: Downloaded on - 10/09/2015 19:42:05 ::: Rng 6 WP2973.14 submission of security deposit per container in the form of demand draft/pay order in case of container damage/detention.
4. The petitioners being aggrieved by the Shipping lines foisting these conditions approached respondent no.4 by addressing several representations and thereby requested respondent no.4 to direct the shipping lines stop indulging in such actions and adhere to the facility Notices issued from time to time and more particularly facility Notice No.69 of 2011. It is the petitioner's case that the shipping lines continue in manifest and deliberate violation of the facility Notices on which immediate action is required to be taken by the respondent no.4. However, there was no response from the respondent no.4 and thus, the petitioners have approached this Court by the present petition.
5. The writ petition is opposed by the respondents.
An affidavit-in-reply has been filed on behalf of the respondents by the Deputy Commissioner of Customs, (Import Noting Section). In ::: Uploaded on - 08/07/2015 ::: Downloaded on - 10/09/2015 19:42:05 ::: Rng 7 WP2973.14 countering the case of the petitioners, the respondents have averred that the writ petition is nothing but, a private dispute between the petitioners who are the importers and the shipping lines. It is averred that the issue is purely contractual in nature and that the entire grievance of the petitioners is that the shipping lines are charging additional security deposit and other charges over and above the freight charges from the importers for delivering the goods in a CFS of the choice of the importer. While making a reference to the Facility notices issued from time to time the respondents contend that in issuing these Facility Notices the respondents have taken all steps to facilitate an early clearance of the goods by preventing congestion at the Port delaying the clearance of goods. As regards the grievance of the petitioners it is contended that the nature of the grievances is such that it is not possible for the Customs to know whether the destination CFS is as per the importer's choice or of the choice of the shipping lines. This is for the reason that the Customs Department is not privy to the contractual dealing between the shipping lines and the importer. It is contended that the facility ::: Uploaded on - 08/07/2015 ::: Downloaded on - 10/09/2015 19:42:05 ::: Rng 8 WP2973.14 Notice No.69 of 2011 was issued as a measure to facilitate trade by giving the importers a choice of CFSs. It is urged that a Bill of Lading is contract of carriage between the shipper and the carrier for delivery of the goods to the rightful consignee and that the dispute in the present case is a contractual or a money dispute between the shipping line and the importer concerning the charges levied by the shipping lines for compliance with the facility Notice issued by Customs. It is urged that this dispute does not attract the provisions of the Customs Act, 1962 and as such is outside the powers of the Customs Officers to take any action against the Shipping lines for charging additional amounts in the nature of additional security deposit etc sought from the importers. The respondents rely on the provisions of section 141 (2) of the Customs Act, 1962 to point out the statutory duty as would be cast on the respondents in regard to the issuance of a facility Notice as a measure to facilitate trade and clearance of cargo.
6. We have heard learned counsel for the parties and ::: Uploaded on - 08/07/2015 ::: Downloaded on - 10/09/2015 19:42:05 ::: Rng 9 WP2973.14 with their assistance we have gone through the relevant documents as placed on record of the writ petition. It is not in dispute that the facility Notices are issued by the respondent no.4 after a consultative process with the stakeholders and are issued under the powers as conferred on respondent no.4 under section 141 (2) of the Customs Act, 1962. These notices and more particularly facility Notice No.69 of 2011 have been issued with an object of facilitating and to enable the importer to have an efficient container movement for early clearing of the goods.. The facility notices with this object prescribe a certain procedure for the movement of import cargo. By facility Notice No.69 of 2011 a 72 hours intimation to be given to the shipping lines of the choice of CFS as made by the importer/CHA is provided for. A perusal of the grievances as made by the petitioners do not indicate that these grievances in any manner fall within these facility Notices so that the respondents can exercise their statutory authority and powers as conferred under the Customs Act, 1962 to issue appropriate directions to the shipping lines/Clearing agents.
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7. There is much substance in the contentions as urged on behalf of the respondents that the relation between the importers and the Shipping lines is purely contractual which is by virtue of a contract between these parties, the contract being a contract of carriage of goods and thus it would be outside the purview of the powers of the Customs Officer to in any manner give any directions and/or intervene in any such dispute between the shipping lines and the importer. The powers as conferred on the Customs Officer to issue the facility Notices would very well be traced to the provisions of section 141 (2) of the Customs Act, 1962 which are powers in respect of conveyance and goods within the customs area. The provisions are specific and stipulate that all conveyances and goods in customs area shall for the purposes of enforcing the provisions of the Act would be subject to the control of the Officers of Customs and that the import or export of goods may be received, stored, delivered, despatched or otherwise handled in a customs area in such manner as may be prescribed and the responsibilities of persons engaged in the aforesaid activities shall be such as may be ::: Uploaded on - 08/07/2015 ::: Downloaded on - 10/09/2015 19:42:05 ::: Rng 11 WP2973.14 prescribed. A plain reading of this provision together with the facility Notices which are issued and as relied by the petitioners go to show that the legal rights as being sought to be enforced by the petitioners are not of the nature which are falling either under the provisions of section 141 of the Customs Act, 1962 or concern the exercise of these powers by respondent no.4 in issuing the facility Notices. The petitioners' grievance is definitely contractual and thus the petitioners would not be correct in contending that the respondents are acting in breach of any statutory provisions or any rules made in that behalf affecting legal rights of the petitioners. We are not shown any statutory provisions or any rule which confers any legal right on the petitioners or the importers and the same being infringed at the hands of the respondents so as to enable us to exercise our writ jurisdiction. Various letters as addressed by the petitioners to the respondents as also specific grievance as urged in the petition and more particularly in para 3 (vi) clearly indicate that the dispute is in regard to the payment of terminal charges, security deposit etc which are completely within the purview of a private ::: Uploaded on - 08/07/2015 ::: Downloaded on - 10/09/2015 19:42:05 ::: Rng 12 WP2973.14 contract which the importer has with the Shipping lines. The petitioner is not remediless to seek enforcement of its legal rights under the contract with the shipping lines if they are aggrieved as such. We are therefore, certain that the reliefs as prayed for by the petitioners cannot be granted.
8. We have asked Mr.Jetley learned counsel for the respondents as to whether the terms of the facility Notices are being implemented to ascertain that the goods on their arrival at the port are being transported to the CFS of the choice of the importers as facility No.69 of 2011 would prescribe. Mr.Jetley learned counsel for respondents states that respondent no.4 would ensure that the goods on their arrival are taken to the CFS of the choice as given by the importers/Clearing House Agents in terms of facility Notice No.69 of 2011. We accept this statement as made by Mr.Jetley on behalf of the respondents.
9. In the light of the above discussion, we see no reason to ::: Uploaded on - 08/07/2015 ::: Downloaded on - 10/09/2015 19:42:05 ::: Rng 13 WP2973.14 interfere in the present writ petition except to the extent of accepting the statement as made by Mr.Jetley on behalf of the respondents that the goods on their arrival are taken to the CFS of the choice as given by the importers/Clearing House Agents in terms of facility Notice No.69 of 2011.
10. Writ petition stands disposed of in aforesaid terms. No order as to costs.
G.S.KULKARNI, J S.C.DHARMADHIKARI, J
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