1. The appellants herein who had supplied citric acid from China to M/s. Marsina Enterprises, Thane, are aggrieved by the order of the Commissioner of Customs (Import), Nhava Sheva, rejecting their request for re-export of the goods on the ground that the importer failed to retire documents and to make payment to the bank and failed to fake delivery of the goods which were therefore shifted to customs bonded warehouse.
3. We find that the adjudicating authority has recorded detailed findings as to why the appellants' request cannot be entertained, as under :- "From the facts on record., it is evident that the goods, in question, were shipped from XINGANG, CHINA vide bill of lading No. CISNNSA 300407 dated 21-6-2002, to Nhava Sheva, India. The B/L mentions following details : Issued by M/s. CHINA SHIPPING CONTAINER LINKS CO. LTD.(1) Shipper : Shanxi Dimine International Trading Co.
Ltd.(2) Consignee : To order of Bank of India, Singapore(3) Notify party : Megabytes International Pte. Ltd. 60, ALBERI STREET, 10-09(4) Ocean Vessel : CSCLGENOA, V0024W(5) Port of discharge : Nhava Sheva, India From the copies of documents available on record, it is observed that; (i) The Indian Agents M/s. Merchant Shipping Services Pvt. Ltd. made an application in the import department of Jawaharlal Nehru Custom House, on 240702 for amendment in the name of the importer in the Import General Manifest/import documents, the details of which were as follows :From: ToMegabytes International Pte. Ltd. M/s. Marsina Enterprises60 Albert Street 10-09, Gala No. 3,Singapore 169 969 Plot House No. 1587No. 'B' S. No. 287/26, Dhanu THANE 401 402 (ii) An e-mail message was sent by M/s. China Shipping to the Indian Agents, M/s. Merchant Shipping Services Pvt. Ltd., Mumbai on 25th July, 2003 to the effect that the name of the notify party (the Importer) be amended. The said e-mail message is reproduced below :From : naliwei Sent: Thursday, July 25, 2002, 321PM Subject: Re B/L CTSNNASA 300407 - CSCLGENOAV 0024W Kindly note we just received shipper's guarantee to amend ntg OF CTSNNSA 300407 as flws : MARSINA ENTERPRISES, GALA NO. 3, PLOT NO. 'B', HOUSE NO. 1587, S NO. 287/26, DHANU, THANE - 401402 Pl correct the m/f ur end and release cargo to once against the O B/L showing "Megabyte International Pte. Ltd., 60 Albert Street, 10-09, Singapore - 189 969" as ntg. Besides pis collect all charges from these amendment at your end" (ii) The Steamer Agents, M/s. Merchant Shipping Services Pvt. Ltd. issued a letter dated 16th August, 2002 to the Manager, Punjab Con-ware, Jawaharlal Nehru Port Trust (custodians) which is reproduced below :MV : CSCL BENOA Voy No. 0024WIGM No. 6416 Hew No. 0044B/L No. - ctsnna 300407 DATED 21-6-2002 KINDLY ALLOW THE CONSIGNEE/ULTIMATE ENDORSEE OF THE ABOVE BILL OF LADING M/S. S.P. COWASJI & CO., (the CHA who was authorized by M/s.
Marsina Enterprises) WHO HAS SURRENDERED THE OBL (ORIGINAL BILL OF LADING) TO CARRY OUT CUSTOM EXAMINATION AGAINST COLLECTION OF ALL YOUR CHARGES (iii) The Steamer Agents M/s. Merchant Shipping Services Pvt. Ltd. further issued the 'DELIVERY ORDER' for the said goods to M/s.
CAWASJI & COM., Mumbai (the authorised CHAs for M/s. MARSINA ENTERPRISES) vide their letter dated 17-8-2002 addressed to the Manager, CFS Punjab Conware. The Delivery order, in brief, showed the following details : D.O. No. 111/DO/01919/05/02 MRH. Dt. 17th Aug. 2002ToDear Sirs, Line : China Shipping ContainerPlease deliver the Below Lines Co. Ltd.mentioned Cargo to4 x 20' FL CONTRE STC 3520 Bags of 88.704 MTs Citric Acid BP 93-99.5% MINFor Merchant Shipping Services Pvt. Ltd.-Sd- (iv) A copy of the Original Bill of Lading No. CTSNNSA 300407, which is on record, shows the following endorsement on the reverse side : PLAY/DELIVER TO THE ORDER OF Auth. Sign.
CHA - 11/319 P. CAWASJI & CO From all these documents, it is clear that the Chinese Shipping Line had advised the Indian Steamer Agents M/s. Merchant Shipping Services, on the guarantee of the shippers, to amend the notified party's name from 'Megabytes international' to M/s. Marsina Enterprises'. The agents had also carried out the amendment in the IGM accordingly. The Indian agents, issued the 'Customs examination order' and the 'delivery order' to M/s. P. Cawasji & Co., the authorized CHA of M/s. Marsina Enterprises, only after the original Bill of Lading was surrendered to them. From all these documents, it is evident that the original Bill of Lading was produced by the authorized representative of the importers M/s. Marsina Enterprises, to the Agents and the 'delivery order' was issued to them for taking delivery of the goods, in question. The goods were, thereafter, taken delivery from the custodians by the CHA on behalf of M/s.
Marsina Enterprises and transferred to the customs bonded warehouse in Punjab Conware after completion of the customs examination and 'pass out order' by Customs authorities. Under these facts and circumstances, the petitioner's argument that the ownership of the imported goods lies with the suppliers M/s. Megabytes International Pte. Ltd. loses credibility. As far as the documents submitted by the petitioners showing that no payments were made and the documents were not retired are concerned, it is felt that in this case the payment to foreign supplier may not have been a pre-condition for delivery of the goods and the original documents might have reached the Indian importer by some other means may be directly from the suppliers. However, I would refrain from making any categorical observation as to how the original bill of lading was produced to the steamer agents who issued the delivery order in favour of the importers M/s. Marsina Enterprises and the circumstances leading to the delivery of the goods. Since a delivery order was issued by the agents and the custodians allowed the delivery of the said goods on the basis of the said documents, there remains no scope to doubt these exchange of documents and consequently the ownership of the goods. On the particular issue of ownership/title of the goods, I intend to refer to the observations made by the Hon'ble Supreme Court in the case of "Union of India v. Sampat Raj Dugar [Civil Appeal No. 223 (MM) of 1992 dated on 21-1-1992] , in the para 20 of the said order.
From the documents mentioned hereinabove, it is dear that the delivery of goods was allowed to the importers whereafter, the goods were warehoused in customs bonded warehouse. I am, therefore, inclined to believe that there must have been some alternative arrangement guaranteeing payment to the suppliers by the importer on the strength of which the original documents were made available to the steamer agents for delivery of goods. In this connection, it is pertinent to mention that the Indian importer had, earlier, imported other consignment through M/s. Megabytes International Pte. Ltd., Singapore where the indenter one Mr. Om Prakash Berlia had acted as the guarantor as well, and possibly the same may be the case here too. I am, therefore, inclined to hold that the title of the goods lies with the importers M/s. Marsina Enterprises only." 4. He has held that the appellants' submission that the goods in question had not entered India and could, therefore, be shipped back to the suppliers was not convincing for the reason that the goods had acquired character of warehoused goods and export of such goods may not be possible except under the provisions of Section 69 of the Customs Act, 1962. He has also noted the serious objection of the importers to the re-export request, under cover of their letter dated 24-11-2003. He has also noted that the DRI had already found that the importers were non-existent, that they had imported various goods duty free against advance licences obtained and had diverted them into the local market for sale, thus rendering the goods liable to confiscation under Section 111(o) and that in the present case also, the goods were originally intended to be cleared against the advance licences and it was only after commencement of investigation by the DRI that the goods were warehoused and advance licence details sought to be utilised were struck down. On this basis, he has held that the goods although not yet cleared were liable to confiscation. The appellants rely upon the judgment of the Apex Court in UOI v. Sampat Raj Dugar to support their contention that since they continued to be holders of title to the goods, they could seek re-export. However, as rightly pointed out by the learned SDR, the evidence on record, as set out hereinabove establishes that the appellants herein did not continue to be the holders of title to the goods in question and that title in the goods had passed on to the importers M/s. Marsina Enterprises who, therefore, objected to the appellants' request for re-export.
Therefore, the appellants' contention that they are entitled to re-export the goods is rejected.
5. In the light of the above, we decline to interfere with the impugned order and accordingly reject the appeal.