Kalyan Jyoti Sengupta, J. - (1.) This matter was once finally heard and disposed of by His Lordship Mr. Justice Kabir by a detailed judgment and order dated 24th July, 1996 [1997 (89) E.L.T. 53 (Cal.)], whereby and whereunder His Lordship was pleased to direct the Customs authority, amongst other, to pay the demurrage and other dues of the Calcutta Port Trust in respect of the goods in question within 15 days from the date and thereafter to permit the petitioner-company to re-export the goods on payment of export duty, if any. Therefore, it appears that relief prayed for by the writ petitioner was granted. However, Union of India, here the Customs authority, preferred appeal against the aforesaid judgment and order and the Appeal Court by its judgment and order dated 6th January, 1997 set aside the judgment and order of the learned Trial Judge and remanded the matter for de novo hearing. Their Lordships in the Appeal Court found that the learned Trial Judge passed orders behind the back of the Union of India. The Appeal Court by its judgment and order pending hearing of the matter afresh, gave interim relief to the petitioner allowing to re-export the goods upon payment of 50 per cent of the demurrage charges with the Port authorities without prejudice to its rights and contention. The balance 50 per cent shall be paid by the Customs authorities again without prejudice to the rights and contentions of the parties.
(2.) On several occasions the fact of the case was recorded by the learned Trial Judge at the interlocutory stage and then the Appeal Court while dealing with appeal against the interim order and finally in the earlier conclusive decision by the learned Trial Judge followed by the Appeal Court and the same is also stated in gist as follows : The petitioner is a Singapore based Company and in terms of the contract entered into by and between the petitioner-company and one M/s. M.K. Enterprises, the Respondent No. 8 herein, shipped consignments of 6 x 20 ft. containers of Electrolytic Copper Wire Rods and raised 6 invoices. The petitioner-company shipped the goods to be offloaded at the Port of Calcutta. Before arrival of the goods the Respondent No. 8 (now 9) informed the petitioner that they were not in a position to take delivery of the goods on being discharged from the vessel at port. At that stage the petitioner requested the shipping and its agents of India that is the Respondent No. 7 not to discharge the subject cargo at the Port of Calcutta and instead send back the same to Singapore. But it was too late to accede to the request of the writ petitioner because by that time the said consignment had already been included in the Import manifest filed with the Customs. Naturally the goods had to be offloaded at port. It was further intimated by the said respondent that after the same being discharged it could have re-exported with the Customs permission. Accordingly requests of re-shipping was made by the shipping line the original Respondent No. 8 on behalf of the petitioner and on 11th May, 1993 to the Customs authority. The Goods were discharged at the Port of Calcutta on 13th May, 1993 and the same are still lying there. On 29th June, 1993 the petitioner also by a letter requested the Collector of Customs to (Calcutta) grant permission to re-ship back the consignment to Singapore. By the said letter early action was sought for, as the goods were incurring heavy storage rent and detention charges. The importer did not release the goods. After protracting request and representation, in the Month of August 1993 the goods were examined by the Customs authority in presence of the Shed Appraiser, Superintendent (Rummaging), Superintendent (DIU), Metal Expert Appraiser and Assistant Collector of Dock as per the order of the Assistant Collector DIU (P). In spite of doing all thing as required by the Customs Authorities the permission of re-shipment was not granted. The said goods were never subjected to any investigation or enquiries. It was a simple case of re-shipment of the goods as the importer refused to accept delivery upon retiring of the bills.
(3.) On the aforesaid back ground the present petition was filed asking for reliefs for a writ of Mandamus directing the Customs authorities to act in accordance with law and allow the petitioner to take back the goods by way of re-shipment to Singapore or in the alternative the petitioner may be allowed to resell the goods in India if they can find any buyer and the demurrage charges demanded by the port authorities should be paid by the Customs Authorities. On 14th January this matter was moved before the learned Trial Judge. His Lordship Mr. Justice A.N. Ray (as His Lordship then was) was pleased to give direction for filing affidavit. However, within the stipulated date no affidavit-in-opposition was filed by the Union of India but on the adjourned date His Lordship Mr. Justice Ray was pleased to give interim relief pending decision of the matter on affidavit again. By this interim order His Lordship allowed the writ petitioner upon giving an undertaking to indemnify the respondent against any claim to re-ship the goods in Singapore. The Customs authorities was also directed to issue detention Certificate so that the writ petitioner was made liable to pay demurrage either to the Calcutta Port or to any other authority. Such Detention Certificate shall be issued within 48 hours of the undertaking mentioned above. Union of India preferred an appeal against the aforesaid judgment and order of Justice Ray and such appeal was dismissed by the Appeal Court affirming the order of the learned Trial Judge on 25th August, 1994. After the decision or the Appeal Court on 27th October, 1994 a Detention Certificate was issued by the Collector of Customs in terms of the interim order passed by Justice Ray. In spite of that the writ petitioner could not take delivery as the Port authority on 23rd December, 1994 made an application for various reliefs including addition of party, though the port authority was also respondent in the original writ petition.;