JUDGMENT
Ajit Kumar Sengupta, J.
1. The Court. The first petitioner acted as the Steamer Agents of a foreign sea-going ship M.V. “Erzuram” belonging to a foreign owner carrying on business In Turkey. The second petitioner Is a Director and Shareholder of the petitioner No. 1.
The first petitioner as the licensed Steamer Agents granted by the Customs House at Calcutta and Port Authorities are obliged as such agents of foreign principal to meet all demands and penalties that may be imposed by the Customs Authorities and Port Authorities on the Vessel entered under Its agency.
On or about 15th April, 1987 a consignment of 14640 PCS. of Steel Billets was inter alia, shipped on the said vessel from the Port of Iskenderan, Turkey for safe carriage therefrom to the Port of Haldla under a Bill of Lading No. 1 dated April 15.1987. The said consignment was to the order of M/s. Minerals & Metals Trading Corporation of India Ltd.. Calcutta The said consignment was carried and declared by the said vessel under line No. 1 in the manifest of the said vessel.
The said vessel also carried various other consignments of Steel Billets from the said Port of Iskenderan, Turkey for safe carriage to the Port of Bombay. One of the said consignments was 220 bundles of Steel Billets covered under Bill of Lading No. 6B, date April 15.1987, notify party being MMTC of India Ltd. A/c Ahmedabad Steel Crafts & Roll in Mills Ltd., Ahmedabad being the ultimate consignees. The said consignment of 22 bundles was declared in the ships manifest filed with Bombay Customs under Bill of Lading No. 6B.
The said consignee being the seventh respondent herein on the basis of the said Bombay manifest duty filed Bill of Entry before the Bombay Customs for the entire quantity of 220 bundles and paid Customs Duty thereunder.
The said vessel after calling at Bombay Port and discharging almost entire cargo there, arrived at the Port of Haldla on June 26,1987 and discharged the balance cargo therefrom at the said Port up to July 12,1987. On July 11,1987, It was, however, observed that the said vessel had over-carried 37 bundles of Steel Billets under Bombay Port mark Since the said vessel already called at Bombay and shall sail for home port on completion of discharge at Haldla the Master of the said vessel Immediately applied to the Assistant Collector of Customs, Haldla on July 11, 1987 to allow the said 37 bundles meant for Bombay to be discharged at Haldia.
For the Haldia Port, the first petitioner was appointed as the local Steamer Agents for the said vessel and the said petitioner apprehending that Customs Authorities at Haldla might confiscate the said excess 37 bundles not manifested for the Haldla Port, Immediately in order to facilitate discharge thereof filed a Supplementary Manifest on July 13,1987 declaring those 37 bundles under line No. 2 in the manifest filed for the said vessel showing as ‘Transhipment Cargo”. The said 37 bundles also bore marks ‘MMTC’ and the marks and members were manifested as such. In the said supplementary manifest, the petitioner not through inadvertence declared the said 37 bundles against Bill of Lading No. 6 instead of the Bill of Lading No. 6B which mistake the petitioners gathered subsequently.
8. The first petitioner filed the said supplementary manifest in the facts and circumstances stated above and on the expectation that since notifying party in the said manifest line No. 1 and line No. 2 is the same, i.e. MMTC of India Ltd., the said 37 bundles over carried would be allotted to some other consignee by the Calcutta office of the MMTC.
9. There has been no advice to the petitioner that said 37 bundles manifested under line No. 2 have been allotted to some other consignee by M/s. MMTC as apprehended and consequently the said 37 bundles were lying uncleared at Haldia docks. However, after the Bombay Port Trust Issued an outturn report on November 23,1987 the owners of the said vessel through their principal agent at Bombay advised the petitioner that 40 bundles Steel Billets have been shortlanded against BUI of Lading No. 6B. The petitioner was further advised that upon the knowledge of 37 bundles over-carried to Haldia the consignees for Bill of Lading No. 6B, the seventh respondent herein, Insisted on the transhipment of said 37 bundles to Bombay enabling them to dear against their 40 bundles declared shortlanded at Bombay.
10. On receipt of the copy Bill of Lading No. 6B sent from Bombay the petitioner observed that the marks and description of the over landed 37 bundles at Haldla for which supplementary manifest was filed under line No. 2 were related to said consignment of 220 bundles of the said goods carried under the said Iskenderan/Bombay Bill of Lading No. 6B dated April 15,1987.
11. It was only then the petitioner realised that the manifest filed in respect of said over-carried 37 bundles under line No. 2 showing against Bill of Lading No. 6 was incorrect as the said 37 bundles should be declared as un-manifested excess cargo enabling to transship the said 37 bundles to Bombay under usual transhipment formalities of the Customs and Port authorities. Only after compliance as above, the consignees for the said 3111 of Lading No. 6B the seventh respondent herein, would be able to dear the said 37 Bundles at Bombay against the Bill of Entry already filed with Bombay Customs.
12. Since the seventh respondent was insisting on the transhipment of the said 37 bundles to Bombay enabling it to dear the same against their 40 bundles shown as short landed at Bombay Port and since for such transhipment It was necessary to amend the supplementary manifest filed with the Calcutta Customs being Incorrectly fled, the first petitioner filed an application for amendment of the manifest with the Customs Authorities at Calcutta by cancelling the supplementary manifest incorrectly fled as stated above. Only upon amendment of the manifest and/on cancellation of the supplementary manifest, the Haldla Dock Authority can issue an amended outturn Report showing the said 37 bundles as unmanifested excess landed over carried cargo from Bombay and It Is only then the petitioners will be allowed to tranship the same to Bombay after complying with the Customs formalities.
13. With a view to transhipping the said 37 bundles to Bombay upon observing usual formalities, the first petitioner approached the Haldla Customs Authorities for amendment of the manifest by cancelling the supplementary manifest which was incorrectly filed as stated above. The said Authority at Haldla expressed his Inability to amend the manifest and asked the petitioners to make an application to Deputy Collector of Customs, Calcutta, for the same. Accordingly, an application was fled by the first petitioner to the Deputy Collector of Customs (Import) at Calcutta on January 21,1988. The said application was made with a request to allow the amendment of the manifest under Section 30(3) of the Customs Act, 1962.
14. Under the authority of the first petitioner one M/s. Bhogilal Merita & Co. of Calcutta also pursued the said application for amendment and made further representation by their letter dated January 29,1988.
15. In spite of the said representation and/or application made before the second respondent, the Deputy Collector of Customs Authorities (Import) and in spite of the fact that the said supplementary manifest was filed through bona fide mistake and/or inadvertence, the Deputy Collector of Customs Authorities (Import) further refused to exercise the jurisdiction vested in him to amend the said supplementary manifest as a result whereof arrangement could not be made to tranship the said 37 bundles to Bombay.
16. The petitioners have made this writ application against the refusal to amend the manifest by the Customs Authorities, Calcutta. A direction was given for filing affidavits in this case. The Customs Authorities have not filed any affidavit. It is however recorded that the respondent do not admit the allegations made in the petition. The Port Trust Authorities, however, filed an affidavit.
17. An objection has been raised at the time of hearing of this application by the Customs Authorities that the intention of the petitioners was not to tranship the goods and if they want, they can file ‘B’ – Form and after payment of the duties in Calcutta they can ask for refund, if the duties have been paid at Bombay.
18. The facts are not in dispute. Nor is It disputed that the entire duties on the entire consignment have been paid at Bombay. The goods by mistake have been over-carried here and the petitioner intend to tranship the goods to Bombay to enable the consignee to dear them at Bombay against the Bill of Entry already filed. There is no reason why the Customs Authorities shall not amend or cancel the supplementary manifests. The Haldia Dock authority should have Issued amended outturn report showing the said 37 bundles as unmanifested entries loaded over-carried cargo from Bombay to enable the petitioners to transport to Bombay. It is the practice of the Customs Authorities to allow such transhipment by Road Transport upon obtaining bond. In that view of the matter, this application is allowed. The respondents – Customs Authorities particularly the second respondent, Deputy Collector of Customs, is directed to allow the amendment of the Import Manifest of the vessel M.V. “Erzuram” as applied for by the first petitioner by Its application dated 21 st January, 1988 by cancelling the said supplementary Manifest in Its entirety in respect of the said vessel. They will be at liberty to withdraw the sat supplementary manifest filed in respect of the said 37 bundles of Billets over-carried from Bombay.
19. The concerned respondents upon cancellation of the Supplementary Manifest by the Customs Authorities and upon issuance of Outturn Report and/c amended Outturn Report of the said vessel “Erzuram” after such cancellation, shall allow transhipment for 37 bundles of Billets landed from the said vessel to Bombay forthwith subject to the condition mentioned hereinafter. It is stated that the Port Trust Authorities: have levied demurrages in respect of the said uncleared goods. The price of the good: which have been landed in Haldia, that is to say, 37 bundles would not exceed Rs 2,64,000/- whereas the Port rent and demurrages would come to about Rs. 10 lakhs. Since I have already directed the cancellation of the Supplementary Manifest it must be deemed that the goods had not been landed in Calcutta and they are in transit for their transhipment to Bombay and accordingly, the Port Trust Authorities are not entitled to claim any demurrages on the said goods.
20. But Mr. Ukil, Learned Advocate appearing for the petitioner, has however submitted that the petitioners will have no objection if any reasonable amount is directed to be paid to the Port Trust Authorities. Having regard to the fact that such goods were kept within the port area after they were discharged from the ship and having regard to the fact that the value of the goods is Rs. 2,64,000/- and even if the goods are sold, It may not fetch more than Rs. 2,50,000/-, the petitioners are directed to pay Rs. 2,00,000/- to the Calcutta Port Trust as and by way of Port rent and/or demurrages in respect of the said 37 bundles of billets within seven days from date. The Port Trust Authorities shell accept the said payment in full and final settlement of their dues and upon such payment being made the Port Trust Authorities shall forthwith thereafter release the said 37 bundles of Sheet Billets for transhipment to Bombay. In default of payment, the interim order as against Port Trust Authorities will stand vacated. It is recorded that the Port Authority have no objection to this part of this order. The respondents Customs Authorities shall cancel the Supplementary Manifest within three days on a signed copy of the minutas of the operative part of this judgment.
21. This application is disposed of accordingly.
22. All parties shall act on a signed copy of the minutes of the operative part of this judgment.