1 IN THE HIGH COURT OFJUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1910 OFD 2009 WRIT PETITION NO. 1910 OFD 2009 WRIT PETITION NO. 1910 OFD 2009 INDIA GLYCOLS LTD. ... Petitoner Vs. Union of India & Ors. ... Respondents Mr. D.B.Shroff, Senior Counsel with Mr. Ashok Kumar Singh for the petitioner. Mr. R.G.Bhatt for respondents. Mr. Manoj Khatri for Applicant in Civil Application. CORAM: F.I.REBELLO AND CORAM: F.I.REBELLO AND CORAM: F.I.REBELLO AND J.H.BHATIA,JJ. J.H.BHATIA,JJ. J.H.BHATIA,JJ. DATE: 23rd April, 2009. DATE: 23rd April, 2009. DATE: 23rd April, 2009. P.C. P.C. P.C. 1. The petitioner sought to export five containers 2 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. 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). 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 3 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. 4. By communication of June 2, 2008, the petitioner wrote to the Commissioner of Customs. A part of the 4 letter may be reproduced which reads as under :- "...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." 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 :- "..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." 5. On the petitioner coming to know that the respondent No.4 had put the goods to auction they 5 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 :- "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 22.05.2008 requested SIIB, Nhava Sheva to allow to take back four containers which was permitted by SIIB, Nhava Sheva." 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 6 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. 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. . 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 7 detention certificate. 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 Apollo paper Mills Ltd. vs. Union Apollo paper Mills Ltd. vs. Union of India 2006 (206) ELT 106 (Bom.) of India 2006 (206) ELT 106 (Bom.) of India 2006 (206) ELT 106 (Bom.). The issue there was as to when warehousing charges can be levied. Also in the case of Equipment Sales Corporation vs. Equipment Sales Corporation vs. Equipment Sales Corporation vs. Asstt.Collector of Customs 1989 (43) ELT 256 (Kar.) Asstt.Collector of Customs 1989 (43) ELT 256 (Kar.) 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. 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 8 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 9 months time was granted by the AC/Disposal for not auctioning the goods. 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. 11. For the aforesaid reasons, we decline to exercise our extraordinary jurisdiction. Petition dismissed. 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. 10 (J.H.BHATIA,J.) (F.I.REBELLO,J.) (J.H.BHATIA,J.) (F.I.REBELLO,J.) (J.H.BHATIA,J.) (F.I.REBELLO,J.)