Page 162 - ELT_1st September 2020_Vol 373_Part 5

600 EXCISE LAW TIMES [ Vol. 373

tonnes for a total sale consideration of 1,065,000 US dollars. The copy of the sale
contract has been annexed as Ext. P1. The sale contract contains certain condi-
tions with regard to the trade term, shipment, payment and resolution of dis-
putes through arbitration. The conditions of the contract included 15% of the
contract amount through telegraphic transfer within three days after the contract
date and the remaining will be paid by DP at sight. It also included 21 days of
free time for the importer i.e. the 2nd respondent to lift the goods as and when it
reaches Kochi Port. Trade term included also a Cost Insurance Freight (CIF),
which every exporter/consignor before sending it on a shipment to the consign-
ee seeks indemnification from a respective insurance company.
3. The Learned Counsel appearing on behalf of the petitioner submits
that the consignments reached the Cochin Port in the month of September 2019.
The 2nd respondent consignee’s intention to lift the goods at the price fixed be-
came dishonest through a communication Ext. P38, dated 25-9-2019, wherein
over and above 21 days of free time, sought another 14 days of extension to lift
the goods with a further prayer of cash discount of 150 US dollars per metric
tonnes only on account of extreme delay, but before that, had submitted the bills
of entry on 19-9-2019, 23-9-2019 and 8-10-2019 (Exts. P41 to P43). Respondents 3
and 4 are the shipping agencies and respondent 5 is the container freight station.
4. Despite having submitted the bill of entry, the goods have not been
lifted entailing into an intended demand of container freight station and as well
as demurrage charges at the end of the 3, 4 and 5th respondents. The expression
‘importer’ used in Section 22 and defines under sub-section (26) of Section 2 of
the Customs Act has undergone an amendment with effect from 31-3-2017 by
including any owner or beneficial owner or any person holding himself to be an
importer thus for all intends and purposes respondent No. 2 cannot be granted
as an importer.
5. A very piquant situation in the instant case as the reason where the
respondent No. 2 despite having submitted bills of entry has not come forward
for claiming the title of the goods or made the payments resulting into an im-
passe and dispute. No doubt the petitioner would have arrived to claim damages
in terms of money arising out of the contract by taking the aid of the conditions
imposed therein, but the predicament at the moment is writ large. It is in this
background of the matter the reliefs, as aforementioned, have been sought seek-
ing the indulgence of this Court.
1 5. In this context, reliance has been laid in the judgment of Hon’ble
Supreme Court in Rasiklal Kantilal & Co. v. Board of Trustee of Port of Bamby and
Ors. [2017 (11) SCC 1 = 2017 (348) E.L.T. 3 (S.C.)]. By referring to the aforemen-
tioned judgment, it has been submitted that the cash against documents would
construe vesting of the title to the goods in favour of the petitioner. In other
words until and unless respondent No. 2 the consignee do not lift the goods and
make the payment the title would vest with the petitioner. Though the contro-
versy in the aforecited judgment was pertaining to the remission of Port demur-
rage charges, over and above the main claims, the interim relief has been sought
for issuance of an appropriate direction directing the 1st respondent to permit
the petitioner or the persons claiming under it destuff the cargo from the con-
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1 Paragraph number as per official text.
EXCISE LAW TIMES  1st September 2020  162