- (1.) The Petitioners are the owners of two containers forming subject matter of the present writ petition. The Petitioner No. 1 is acting as a container agent. Two containers were brought by the Petitioners stuffed with Beetle nuts and those were landed at Haldia Dock Complex on 4th August, 2001 and 5th August, 2001 respectively. The Petitioners being the container owners filed a landing guarantee with the Customs authorities undertaking that after disstuffing cargo, the containers would be re-exported either empty or after stuffing of export cargo. Import Agent Manifest (I.A.M.) was also filed by the Petitioners with Customs authorities. Landing guarantee was accepted by the Customs authorities on 30th August, 2001. As per the said landing guarantee the Petitioners were required to re-export those two containers immediately after disstuffing the cargo, otherwise penalty would be imposed upon them as per Section 142 of the Customs Act, 1962.
(2.) The consignee of the imported cargo neither turned up to take delivery of the imported cargo nor abandoned the cargo. In such a situation the Petitioner No. 1 by its letter dated 23rd November, 2002, requested the Port authorities to allow the Petitioners to disstuff the said cargo immediately as the said imported cargo was perishable item as notified under the manifest. In reply to the said letter, the authority of the Kolkata Port Trust, by its letter dated 26th November, 2002 informed that the steps have already been taken for disposal of the cargo by conducting auction thereof. The Petitioner was further informed that disstuffing of the cargo would be allowed at the time of delivery thereof to the buyer after the cargo is sold through auction. Thus, the Port Trust authorities did not agree with the Petitioners' proposal for immediate disstuffing of the cargo and/or release of the containers to the Petitioner. Subsequently by another letter dated 30th November, 2002 the Petitioner again requested the Port Trust authority to ensure disposal of cargo as per instruction of the Ministry of Finance and Customs Act and release of their containers so that those containers can be re-exported by them as per Customs regulation which provides that the containers are to be re-exported within six months from the date of landing. In spite of such request being made by the Petitioners, the Post Trust authorities did not take any effective step either for disstuffing the cargo from those containers or for sale of the cargo by auction. Though, the Port Trust authorities were aware about their statutory duty regarding sale of the cargo as per Sections 61 and 62 of the Major Port Trust Act of 1963 for realizing the port charges, in case the cargo remains uncleared either by the consignee or by its agent within two months from the date of its landing in the port area but still then they did not take any step for sale of those cargo for realizing the port charges and, thus, they themselves became responsible for causing loss to Port Trust fund. Their awareness of their aforesaid duties is reflected from the letter written by the Port authority to another Line Operator, namely, Bengal Tiger Line (I) Pvt. Ltd., on 21st July, 2003. As such they cannot disown their responsibility by pleading ignorance of their statutory duties.
(3.) The Petitioners herein also wrote a letter on 12th September, 2003 requesting the Customs authorities to sell the said unclaimed cargo as per the provision contained in Section 48 of the Indian Customs Act, 1962 so that those containers could be exported by the Petitioners as per the Customs regulation. Identical request was made by the Petitioners to the Customs authority on 7th April, 2004 as will appear from the Petitioners' letter dated 7th April, 2004 addressed to S.A.C./Dy Commissioner of Customs. But all such efforts of the Petitioners were in vein as neither the Port Trust authorities nor the Customs authorities took any effective step either for sale of the cargo stuffed in the containers or for release of the empty containers to the Petitioners.;