India Glycols Ltd. Vs Union of India and Ors.

 IN THE HIGH COURT OFJUDICATURE AT BOMBAY

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 CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 1910 OFD 2009

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 INDIA GLYCOLS LTD. ... Petitoner

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Vs.

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 Union of India & Ors. ... Respondents

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 Mr. D.B.Shroff, Senior Counsel with Mr. Ashok Kumar

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 Singh for the petitioner.

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 Mr. R.G.Bhatt for respondents.

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 Mr. Manoj Khatri for Applicant in Civil Application.

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CORAM: F.I.REBELLO AND

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 J.H.BHATIA,JJ.

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 DATE: 23rd April, 2009.

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 P.C.

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 1. The petitioner sought to export five containers

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 from their factory at Nhava Sheva via Moradabad ICD for
 onward shipment to Thailand. All the five containers
 were loaded on the ship. One of the containers was
 offloaded as a leakage was detected. The ship Y.M.
 Intelligent Voy-24 sailed with the other four
 containers. The container which was offloaded was
 examined and found to contain mud and empty cement bags.

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 2. Respondent no.3 by a communication addressed to
 the Shipping Company directed the Shipping Company not
 to deliver the four containers at the port of discharge
 to any claimant and recall the same back to India for
 carrying out necessary investigations. Thereafter,
 correspondence entered into between the petitioner and
 the respondents. On the containers arriving at the JNPT
 Port, they were moved by the shippers to the CFS run by
 M/s. Preeti Logistics Ltd. (Respondent No.4).

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 3. On 11.4.2008, respondent no.3 informed the
 petitioner with reference to the letter dated 24.3.2008
 that they have no objection for reworking and also for
 export of the four containers which are permitted
 subject to necessary amendment in respect of the
 container numbers, rotation numbers and other documents
 as set out therein. This document was not annexed when
 the petition was filed. Thereafter, by letter dated May

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 13, 2008, the petitioner informed the Assistant
 Commissioner of Customs, Moradabad that they would not
 like to export the cargo for reasons set out therein and
 sought permission to destuff the four containers. The
 respondent No.3 by letter dated 21.5.2008 informed the
 Assistant Commissioner of Customs, Moradabad with
 reference to the letter dated 5.5.2008 that they have no
 objection for reworking and also the export of the four
 containers. It was further made clear that they have no
 objection for reworking the above four containers to the
 petitioner’s plant at Kashipur. By a communication
 dated 22.5.2008, the Assistant Commissioner of Customs,
 ICD, Moradabad, wrote to respondent No.3 to allow the
 aforesaid four containers to back to town, to the
 factory of M/s. India Glycols Ltd., Kashipur as the
 buyer had cancelled the order. As the petitioner had
 not removed the containers, by letter dated 27.5.2008,
 respondent No.4 informed the petitioner that they have
 received letter dated 11.4.2008 from the Additional
 Commissioner of Customs that they have given NOC for
 release of four containers for factory stuffed
 containers and informed the petitioner to clear the
 goods failing which they would be auctioned.

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 4. By communication of June 2, 2008, the petitioner
 wrote to the Commissioner of Customs. A part of the

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 letter may be reproduced which reads as under :-

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 "...Unfortunately, our buyer has refused to accept
 these four containers and we have requested for
 permission to de-stuff these four containers and
 take back our material to Plant. You have also
 kindly agreed to our request and granted
 back-to-town permission."

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 By a letter of July 3, 2008, the petitioner once again
 wrote to the Chief Commissioner of Customs. Again the
 following portion of the letter may be reproduced :-

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 "..We have now in our possession all requisite
 permissions from SIIB, Customs Exports, Customs
 Import Section as well as Moradabad Customs to
 de-stuff our material from these four containers
 and take it back to our Plant at Kashipur.
 However, shipping line is not releasing our
 material and demanding huge detention, demurrage
 etc. for which we have requested Customs to
 intervene and request shipping line to waive off
 these penal charges."

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 5. On the petitioner coming to know that the
 respondent No.4 had put the goods to auction they

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 requested not to auction the goods and that they were in
 touch with the shipping line for settlement of their
 payment. Various other correspondence which has been
 relied upon need not be referred to except a part of the
 letter dated 9.1.2009 addressed by the petitioner to the
 respondent no.4. We may gainfully reproduce the same.
 It is as under :-

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 "That we thereafter approached buyer who refused
 to accept the consignment and cancelled the
 subject order. Having no option we requested
 Moradabad Customs and sought permission to take
 back four containers to their factory due to
 cancellation of order. The Assistant
 Commissioner, Moradabad vide letter dated

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 22.05.2008 requested SIIB, Nhava Sheva to allow to
 take back four containers which was permitted by
 SIIB, Nhava Sheva."

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 6. On behalf of the respondent Nos.2 and 3, they have
 filed an affidavit setting out that no objection was
 given for reworking of shipment to the petitioner
 immediately after the investigation was completed in the
 month of April, 2008. It is also pointed out that it
 was the petitioner who approached the Assistant
 Commissioner of Disposal of the Customs and asked for

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 time of six months. Accordingly, six months’ time was
 given for not auctioning the goods and the time expired
 on 31st January, 2009. The petitioner had informed that
 they were about to strike a deal with overseas
 customers. In answer to this averment, all that the
 petitioner says is that it requires no comment and that
 the deponent of the affidavit has no personal
 information. It is not necessary to set out several
 other facts.

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 7. The petitioner has prayed to quash the decision on
 the part of the respondent No.3 communicated by letter
 dated 29.12.2008 to auction the goods without any
 further communication from the petitioner and directing
 the respondent No.2 to forthwith issue detention
 certificate certifying cause of detention and further
 directing respondent No.4 to waive the demurrage,
 detention and ground charges or to bear demurrage,
 detention and ground charges and release the consignment
 without payment by the petitioner.

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 . It would then be clear therefrom that what the
 petitioner is praying in this petition is that the
 respondent No.4 should not auction the goods for
 recovery of their dues and that respondent No.4 should
 waive all the dues. Also, the respondent No.2 to issue

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 detention certificate.

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 8. At the hearing of the petition, the learned
 Counsel sought to contend that they were not at fault
 and that in these circumstances, the question of they
 paying demurrage, etc. would not arise. Reliance,
 amongst others, has been placed on the Judgment of this
 Court in the case of Apollo paper Mills Ltd. vs. Union
of India 2006 (206) ELT 106 (Bom.). The issue there was
 as to when warehousing charges can be levied. Also in

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 the case of Equipment Sales Corporation vs.
Asstt.Collector of Customs 1989 (43) ELT 256 (Kar.) in
 the matter of issuing detention certificate. A learned
 Single Judge of the Karnataka High Court noted that
 there are no rules or regulations for the issue of
 detention certificate and that they have been issued
 pursuant to the decision of the Courts.

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 9. The issue of waiver of charges from the respondent
 NO.4 is a question which cannot be decided in these
 proceedings more so because of the correspondence on
 record gives rise to disputed questions of facts. There
 is no dispute that after the goods were unloaded for
 being brought back from Thailand they are in storage
 with the respondent No.4. There is also no dispute that
 the respondents Nos. 2 and 3 were carrying on

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 investigations in the matter. Out of the containers,
 one container was found to contain mud and gunny bags.
 The record also shows that right from 11.4.2008, after
 investigations were complete, those respondents had
 given their no objection for removal of the containers
 and/or de-stuffing the containers. From the
 correspondence exchanged by the petitioner with the
 respondents, which are referred to earlier, the
 petitioner themselves understood that they have all the
 necessary permissions since the letter dated 3.7.2008 as
 also the letter dated 9.1.2009. From the affidavit of
 K.K.Srivastav, it is further clear that the petitioners
 had asked respondent NO.4 not to put the goods in
 auction for six months from 1.8.2008. It is also
 pointed out that all the original documents were handed
 over to the exporter. It is also set out that the
 Department cannot be held responsible for the charges.
 In the additional affidavit of K.K.Srivastav filed on
 behalf of respondent Nos. 2 and 3, in para 5, it is set
 out that investigation was completed in the month of
 April 2008 and no objection was given for reworking the
 shipment. It is also pointed out that the petitioner
 approached the Assistant Commissiioner of Disposal of
 the Customs and asked for six months’ time, as they were
 in the process of striking a deal with the overseas
 buyers. Based on the request of the petitioner, six

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 months time was granted by the AC/Disposal for not
 auctioning the goods.

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 10. The petitioners considering the record cannot
 contend that they have not received the necessary
 permissions from respondent Nos. 2 and 3. From the
 record and the petitioners’ own correspnodence ,it is
 clear that it is the petitioner who have not taken steps
 to destuff the containers. Considering the above, in
 our opinion, as there are no legal hurdles in the
 petitioner destuffing the containers, this is not a fit
 case for us to exercise our extraordinary jurisdiction.

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 11. For the aforesaid reasons, we decline to exercise
 our extraordinary jurisdiction. Petition dismissed.

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 12. We make it clear that the issue as to whether the
 petitioners are liable for exemption from demurrage,
 etc. if the petitioner are entitled can be
 independently pursued. That however cannot result in
 respondent No.4 not taking any action as admittedly
 respondent No.4 are entitled to the warehousing charges.
 The demand from the Shipping Line is an issue which the
 petitioners have to independently pursue in independent
 proceedings.

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(J.H.BHATIA,J.) (F.I.REBELLO,J.)

India Glycols Ltd. v. Union of India and Ors.

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India Glycols Ltd. v. Union of India and Ors.

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