- (1.) Petitioner carries on business under the name and style of Narayan Timber Works, at 67/23, Strand Road, in the town of Calcutta. He feels aggrieved by an order of confiscation of goods and monetary penalty, imposed upon him by the respondent No. 1, Additional Collector of Customs, and has moved this Court for relief, under circumstances hereinafter stated.
(2.) On October 20, 1960, the Collector of Customs, Calcutta made the following notification concerning discharge of unserviceable dunnage wood: "It is notified for information of the Steamer Agents to discharges of the consignments of Dunnage Wood from the importing vessels will be allowed only on account of the steamer Agents. Bills of Entry in respect of such consignments should be for the full quantity discharged. Clearance will be allowed only of unserviceable Dunnage Wood or Shifting Boards, that is, those which are nailed, oil or colour stained, broken and/or cracked. The Steamer Agents obtaining delivery of such consignments will be required to satisfy the Customs Authorities that the discharge is for bonafide reasons. For this purpose, they will have to produce a certificate from the Master of vessel that for specified reasons the Dunnage Wood is unusable. The consignments after discharge will be required to be given distinctive marking by sprinkling colour or Paint on the wood at the expense of the Steamer Agents in order that the identity of the full quantity can be established at the time of clearance. This comes into force immediately." Respondent No. 4, Scindia Steam Navigation Co. Ltd., is a Steamer Agent within the meaning of the notification.
(3.) The petitioner says that, in the month of October 1961, he entered into a contract with respondent No. 4, Scindia Steam Navigation Co. Ltd. for purchase of unserviceable dunnage wood carried by various ships belonging to the respondent company, inter alia , on terms hereinafter appearing: "1. Our terms and conditions of sale of unserviceable dunnage wood annexed to the tender submitted by you shall form the basis of this contract, unless they conflict with the terms set out in the attached list of accepted rates in which case the latter shall prevail. 2. The delivery of the materials shall be effected on "As it were/is" basis from the ships concerned prior to their sailing or within 3 days of receipt of our delivery order whichever is earlier failing which the Company reserves the right of resale at your entire risk and cost. The delivery order on the ship will be issued on payment of cost of the materials, which on no account will be refundable. 3. It is expressly understood that strict adherence shall have to be made by you to the Customs notifications regarding the clearance of dunnage on our behalf, and that you shall also meet with all the requirements of the Joint Import /Export Trade Controller. 4. If you do not pay the value of the dunnage wood offered for sale, the company is at liberty to resell the same and any deficiency or loss will be recovered from the earnest money deposit. 5. This contract which commences with immediate effect will remain in force until 30-6-1962 unless extended at our option for a further period not exceeding three months. 6. We have accepted your tender exclusively on the terms and conditions contained in this letter and nothing whatsoever which is not expressly included herein shall be deemed to form part of the contract. The earnest money paid by you will be treated as your contract deposit.";