1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1066 OF 2010 Mr.Rakesh Dhir. ... Petitioner. V/s. The Union of India and others. ... Respondents. Shri Ravi Kadam, Advocate General with Mohan Jayakar i/b. Khaitan & Jayakar for the petitioner. Shri A.S.Rao for respondent Nos.1 to 4. Shri S.N.Kantawala with Brijesh Pathak for respondent Nos.5 to 10 and 12. CORAM : V.C.DAGA AND K.K.TATED, JJ. DATED : 15th March 2010. JUDGMENT : (Per Vijay Daga, J.) Rule, returnable forthwith. Respondents waived service. Heard finally by consent of parties. 2. This petition filed under Article 226 of the Constitution of India seeks to challenge the public notice No.2/1010 dated 14th January, 2010 and consequent order dated 25th January, 2010 clarifying that no request for amendment of consignee’s name in the IGM shall be entertained if the consignee first named has already filed the bill of entry and has neither withdrawn the same nor given NOC for the amendment. 2 Factual Matrix : 3. The factual score emerging from the petition is that a Brazilian company by name Cooperaguas Cooperativa AgroIndustrial Aguas Frias (hereinafter referred as “Cooperaguas” for short) agreed to sell approximately 3,875 metric tons of Brazilian Brown Eye Beans (hereinafter referred to as the “imported goods” for short) to a company in the United States of America, namely, PKT Associates Inc. (hereinafter referred to as “PKT” for short) covered under 13 contracts. The said contracts were executed through mutually agreed agricultural agents, namely, M/s.Hugo Raggi and M/s.Iberica Corretora on behalf of the parties thereto. Under the terms of the contracts, the cargo was to be delivered at the Nhava Sheva Port, Navi Mumbai and shipment was to be effected by the end of November 2009. 4. Accordingly, in line with the said contracts, Cooperaguas loaded the consignment of 3,875 metric tons of the imported goods on board four vessels, namely, Saylemoon Rickmers, San Aurilio, San Alessio, and San Adriano. In acknowledgment of the imported goods having been loaded on board the vessels, the shipping company issued 26 bills of lading covering the entire consignment of 3,875 metric tons. The petitioner is informed that on the instructions of PKT, in the column “Consignee” in the Bills of Landing, it was to be indicated “to order”. 5. Thereafter, the said vessels sailed from Port Parangua in Brazil and arrived in the Nhava Sheva Port, India on the dates as indicated in para-4(c) of the petition. The names of notified parties given in para-4(d) of the petition are the respondent Nos.5 to 14 in the present petition. According to the petitioner, for five bills of lading he has filed bills of entry and accordingly, cleared the imported goods after obtaining the necessary clearance from the Custom Authorities. With regard to the remaining 20 bills of lading as set out in para-4(d) of the petition, the notified parties/ respondents filed their respective bills of entry for home consumption with the Customs authorities without the original shipping documents attached. 3 6. The petitioner is informed by Cooperaguas that the bills of entry as filed by the 10 notified parties were based on non-negotiable and faxed documents. It appears that there is some dispute between the foreign supplier and the respondent Nos.5 to 14. Consequently, the 10 notified parties did not come forward to take delivery of the imported goods. Since the imported goods had arrived at Nhava Sheva Port and incurring demurrage and detention charges on a daily and since the imported goods were semi- perishable and subject to deterioration, Cooperaguas was left with no other alternative but to find another buyers for the same. 7. On the above backdrop, it appears that the petitioner entered into a contract and agreed to purchase the entire quantity of the imported goods covered by the 26 bills of lading. Pursuant to the contract, 26 invoices were raised by the Cooperaguas on the petitioner in connection with the goods imported. 8. As already stated hereinabove, the petitioner had filed 5 bills of entry for home consumption in respect of which the notified parties had not filed their bills of entry and, accordingly, the petitioner got the imported goods cleared covered under 5 bills of entry. The remaining 20 bills of lading, immediately after the contracts with Cooperaguas, were signed on 7th January, 2010. 9. The petitioner applied to the Customs authorities to seek amendment to the IGM so as to substitute his name as consignee in place of notified parties. However, it appears that in respect of remaining bills the amendment to the IGM was not permitted by the Customs authorities in view of the public notice dated 14th January, 2010, That is how the petitioner is before this Court to challenge the said public notice. On this factual matrix, this petition was heard. 4 Contentions : 10. Mr.Ravi Kadam, learned Advocate General appearing for the petitioner urged that under sub-section (3) of section 30 of the Customs Act, 1962, if the proper officer is satisfied that the import manifest or import report is in any way incorrect or incomplete, and that there was no fraudulent intention, he can permit it to be amended or supplemented. According to him, this power to amend and/or supplement the IGM is required to be exercised judiciously after due investigation by the proper officer, and that after his due satisfaction that there is no fraudulent intention, he has to permit the amendment to the IGM or he can supplement it. 11. Learned Advocate General submits that without any investigation and/or without affording any hearing to the parties, the Commissioner has refused to permit amendment to the IGM. According to him the statutory power has not been exercised judiciously. In this view of the matter, the order refusing to amend IGM merely on the ground of public notice dated 14th January, 2010 cannot be said to be legal and valid exercise of power. 12. Mr.Kantawala submits that respondent Nos.5 to 14 are the 1st purchasers and importers of goods and having filed B/E by them without their consent IGM cannot be amended. Consideration : 13. Having heard both parties, the provisions relating to conveyances carrying imported or exported goods are to be found in Chapter VI of the Customs Act. Section 30 thereof deals with delivery of import manifest or import report. Sub section (3) of Section 30 reads as under: 5 30. Delivery of import manifest or import report: (1)........ (2)........ (3) If the proper officer is satisfied that the import manifest or import report is in any way incorrect or incomplete, and that there was no fraudulent intention, he may permit it to be amended or supplemented. 14. Sub section (3) of Section 30 lays down that if the proper officer is satisfied that the import manifest or import report is in any way incorrect or incomplete, and that there is no fraudulent intention, he may permit it to be amended or supplemented. As against this, if one turns to the public notice dated 14th January, 2010, the policy decision taken by the Revenue is only by way of guide-line and the public notice issued by the authorities covers only the part of the problem faced by the department. The guide-line mentioned therein is not exhaustive and does not cover all contingencies falling under Sub Section (3) of Section 30 of the Customs Act. The proper Officer is bound to consider the case of the petitioner independent to the guide-lines. The Apex Court, in the case of Indian Railway Construction Co. Ltd. v. Ajay Kumar, 2003 (4) SCC 579 has clearly laid down that whenever there is a failure to exercise discretion under discretionary power conferred by the statute, then, it is permissible for the Court to take note of such inaction and give a direction to consider the case. 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 6 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. The Decision : 16. On the aforesaid backdrop, the impugned order dated 25th January, 2010 refusing to grant amendment to the IGM is set aside. Matter is restored back to the Deputy Commissioner of Customs (Import Noting) with direction to consider the same afresh and decide it by a reasoned order following principles of natural justice with expeditious despatch, at any rate, within four weeks from the date of receipt of copy of this order. Question of validity of public notice dated 14th January, 2010 is left open for being considered in the appropriate proceeding at appropriate stage, if occasion arises. All rival contentions on merits are kept open. Rule is made absolute in terms of this order with no order as to costs. (K.K.TATED, J.) (V.C.DAGA J.)