VIJAYRAJ Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) This Writ Petition coming on for orders as to admission on Wednesday the 9th day of January 1991 and on this day upon perusing the petition and the affidavit filed in support thereof and upon hearing the arguments of Mr. K. Kantwala for M/s. T. Muthuraman, A. K. Jayaraj and M. Jawahar, Advocates for the petitioner, and on notice Mr. P. Narasimhan, Senior Central Government Standing Counsel on behalf of the respondents 1 to 3 of Mr. M. Muthappan, Advocate for the 4th respondent, the Court made the following order :-

(2.) The petitioner is the Constituted Attorney of M/s. West Yong Traders. The petitioner-firm claims to be well known suppliers and exporters of various types of raw materials and finished goods from Singapore to India and other countries. One of the customers of the petitioner-firm is the 4th respondent who has bought many items especially metallurgical grade silicon. About 249 drums of metallurgical grade silicon and certain other goods like cadmium were shipped by the petitioner by the vessel M.V. "LEUVE" on 16-10-1990. The said goods had been consigned to and in favour of the 4th respondent. But the entire case of the petitioner is that the 4th respondent never placed any orders for the said goods and the goods had been consigned in favour of the 4th respondent by inadvertence and by an administrative mistake. After the vessel commenced its voyage towards Madras, the petitioner claims to have discovered the mistake and they had sent urgent FAX Message to M/s. Macoline, Agents of the Vessel at Singapore, directing them to inform the Vessel's agent M/s. Patvolk at Madras not to unload the containers and to bring them back to Singapore. A similar telex message was also sent to the Captain of the vessel. When the vessel was about to reach Madras Port and before receiving the telex message, the Import General Manifest was filed by the vessel, mentioning the 4th respondent as the importer for the 4 containers containing the said 249 drums. The Shipping Agent, after receiving the message, had not filed an amendment to the Import General Manifest. To continue the narration, the vessel did not discharge the disputed goods and left Madras for its onward journey to Colombo. Respondents 2 and 3 became suspicious, after going through the Import General Manifest and started investigating the matter. Their apprehension was that imported silver had been clandestinely brought in the guise of metallurgical grade silicon. The Vessel's Agent at Madras M/s. Patvolk was pressurised by the second respondent to bring the cargo back to Madras, threatening to detain all vessels belonging to Macoline coming to India. The goods were ultimately brought back to Madras during the first week of November, 1990 and the respondents carried out extensive examination of the goods. No incriminating materials were found and the containers contained only silicon, tin and a small quantity of cadmium. The petitioner-firm sent a telex message to the third respondent explaining the entire facts and seeking permission to re-export the goods back to the petitioner-firm. Further letters dated 12th and 13th November, 1990 proved unproductive. It is under these circumstances that the petitioner has come forward with this writ petition seeking a writ of manda mus to direct respondents 1 to 3 to permit re-export of the goods packed in four containers without charging any duty, fine or penalty.

(3.) In the counter affidavit of respondents 1 to 3, it is stated that the consignment was also insured with M/s. India International Insurance Private Limited, Singapore with the claims payable by M/s. United India Insurance Co., at Madras. It is also stated that the goods when taken back from Madras to Colombo had been off loaded at Colombo. It is also stated that from the statement recorded from the Proprietor of the 4th respondent, respondents 1 to 3 had every apprehension that contraband articles were sought to be smuggled into India and apparently having scent of the proposed action of the customs authorities, had diverted the goods to Colombo. Whatever that may be, ultimately, it is admitted that the containers contained only 1534 bars of tin ingots in 86 drums, 4160 kgs. of cadmium in 13 drums and the rest of the drums contained silicon. It is stated that the market value of the undeclared goods amounts to Rs. 1 crore. According to the respondents, the parties have violated the provisions of the Customs Act. In particular, it is stated that having mentioned the goods in question in the Import General Manifest, the action of the person in-charge of the conveyance in not unloading the goods in India attracts the penal provisions of Section 116 of the Customs Act. It is also pleaded that respondents 1 to 3 have no authority to allow re-export of the goods unless applied for with proper and admissible reasons. The emphasis is on the fact that the goods were intended to be imported to India and this position is clear from the various documents. It is not incumbent on the third respondent to direct re-export of the goods.