1989 PLP 4265 (MLD)

SALEEM AKHTAR, J.--The petitioners obtained import licence dated 16-4-1976 in respect of import of Second/Cuttings of iron and steel sheets/plates in cut length with the minimum width of 20" and minimum length of 48". The petitioners placed import order for U.S. $. 61, 500 with M/s. U.S. Stainless Corporation of New York through their agents in Pakistan M/s. Shabbir Trading Co., at Karachi. They also opened an irrevocable letter of credit dated 23-4-1976 for U.S. $ 61,500 in favour of the exporter in U.S.A. The consignment consisted of 85 skids and was shipped on board s.s. "Maula Baksh" against a clear Bill of Lading No. 39 dated 2-7-1976. On arrival of the vessel at Karachi the petitioners paid import duty of Rs. 1,04,203.05 and sales tax of Rs. 40,193 for the said consignment. The petitioners claim that the consignment imported by them was not available for delivery with Karachi Port Trust as the same had short-landed. The Karachi Port Trust issued a short-landing certificate. Joint survey was also carried out by M/s. Saleem Hyder and Co., M/s. Moin & Co., and M/s. Bhombal & Co., for the consignees, the underwriters and the carriers respectively. According to the petitioners the survey reports confirmed the short- landing. The petitioners then filed a claim for refund of import duty and Sales Tax paid by them. The Assistant Collector of Customs by his order dated 3-1 1978/21-1-1978 rejected the petitioners' claim. The petitioners filed appeal before the Collector of Customs, the respondent No 2, who dismissed the same by order dated 22-5-1978. The petitioners challenged this order in Revision before the Government of Pakistan, but the same was also dismissed on 4-10-1979. Petitioners have challenged these orders passed against them in this petition. We have heard Mr. I.M. Patel the learned counsel for the petitioners. In spite of the fact that notice for the date of hearing on 21-12-1988 was duly issued and received by the respondent No.2 no one has appeared. The learned counsel for the petitioners, has contended that the survey reports and the short-landing certificate issued by the Karachi Port Trust clearly establish that 85 skids shipped by the exporters in U.S.A. had short-landed. The finding of the respondents Nos. 1 and 2 is therefore, based on surmises, conjectures and on no evidence at all. The petitioners have challenged three orders passed by three authorities, but the Assistant Collector who had passed the first order dated 3-1-1978 has not been joined as a respondent. This lacuna the petition disentitles the petitioners from challenging the said order. The Assistant Collector in his order has taken the view that 85 skids of iron and steel were lying under `Nil' mark and number as an excess cargo as certified by the Karachi Port Trust. The Steamer agents by their letter dated 5-10-1987 have stated that the goods were landed under proper marks and numbers. According to the Assistant Collector of Customs as the goods are available, the claim cannot be entertained. This was confirmed by the respondent No.2 without any further reason. However, in revisional order the respondent No.l stated that 85 skids under `Nil' mark and number are lying in the Port Trust and the same can be connected with the cargo imported by the petitioners. The respondent No.l also viewed with concern that the claim made and refusal to accept the goods is merely an attempt to get out of the contravention of I.T.C. Rules and implications. The petitioners admit that 85 skids were available under `Nil' mark, but they claim that these are not the goods imported by them. For that they rely on the survey report of Saleem Hyder & Co. and Mom & Co. The petitioners have not filed the report of Bhombal & Co., who were the surveyors appointed by the carriers. These document show that all the 85 skids contained steel sheets, second/cuttings, secondary soft commercial temper of different sizes and gauges. Therefore, so far the description of the goods is concerned they are the same, which were imported or permitted by the import licence. However, the g difference is only in respect of the size and gauges as stated by the surveyors. It is also an admitted position that these skids were discharged from s.s. "Moula Baksh", the vessel, which had carried the goods of the petitioners. Out of these 851, skids according to the survey report of Saleem Hyder & Co., 25 bundles conform to the invoices as far as length and width are concerned, but according to the surveyors they had a gauge much thicker than the maximum mentioned as 16 SWG. This does not seem to be a correct position because in the invoice, the petitioner had agreed to purchase these goods of 16 to 26 SWG majority 20 and lighter. This means that the permissible gauge under the agreement was between 16 to 26 SWG and majority were required of 20 gauges and ligther. Therefore, it is incorrect to say that maximum gauges mentioned were 16 SWG. In fact it was between 16 and 26 SWG and if the goods in 25 skids had a gauge much thicker than 16 SWG the exporters had not committed any breach but they had supplied the goods in terms of their agreement. This discrepancy therefore, cannot be treated as a ground for rejection of the goods or to hold that these goods do note belong to the petitioners. It is true that these skids did not bear any marks and numbers and a short-landing certificate has been issued by the KPT. The Karachi Port Trust is a statutory body which compares and issues certificate about the discharge of the goods from the ship. The report of the K.P.T. is based on the manifest filed by the vessel in which the description and particulars of the goods are duly mentioned. They also mention the number of bill of lading and the marks or and numbers on the goods. Therefore, if the goods are discharged without any mark and number, a short-landing certificate is issued because this short-landing certificate is in relation and on the basis of the marks and numbers. If these' marks and numbers are not available then the goods shall be treated as having short-landed although they may be available under `Nil' mark. Therefore, the goods under `Nil' mark have to be connected with the goods claimed to have been imported by the consignee. In these circumstances, if the goods are available under `Nil' mark and they can be properly connected with the goods imported by the consignees, then although a short-landing certificate on the basis of marks and number has been issued actually there is no short-landing because the carrier can account for it by connecting the goods discharged under `Nil' mark. This process is obtained by a joint survey of the goods and if the goods are found to be the same, which were shipped, the carrier's responsibility is discharged. Under the Carriage of Goods by Sea Act or the law governing the carriage of goods by sea, a carrier has to give marks and numbers to all the goods shipped on board the vessel, which is mentioned in the bill of lading. Such marks and numbers should be borne by the packets, skids, or the goods in whatever manner they are packed. The discharge and delivery of the goods is made by marks and numbers, which are mentioned in the bill of landing: But there may be cases where during carriage the marks and numbers may obliterate. This may be due to improper marking or handing or stress during voyage. Therefore, there may be a technical short-lading by mark and number but if the goods are actually available and once they are connected or certified to be the same goods shipped to the consignee, the carriers cannot be held liable for short-lading. In the present case 85 skids were discharged out of which 25 skids, in our view, are the same goods which were ~i shipped on board the vessel to the consignee, the petitioners. Now the question arises about the remaining 60 skids. The survey report shows that although the goods are the same they differ in sizes. The size of the goods may be an important factor as the import licence imposes a restriction on it. According to the import licence and import trade classification the goods should be iron and steel sheets in plates in cut length or coil minimum width 20" and minimum length 48". Therefore, the minimum width and minimum length has been prescribed by the import licence. The invoice puts the description of the goods as follows:- "Steel Sheets, Second/Cuttings: M.S. CRCA Secondaries, Soft Commercial, Temper 2' x 6' and Larger 16 to 26 SWG Majority 20 and Lighter, as per Pro forma Invoice No. 135, 006 dated April 12, 1976 of Messrs Shabbir Trading Co., Karachi." This Invoice of Shabbir Trading Co. has also been filed and it seems that the width and length has been given as 2` x 6` and large. In the survey report of Saleem Hyder & Co., it has been stated that in 60 bundles width is much less than 24". It does not state whether it is less than the minimum prescribed by the import licence. The report of Moin & Co., however, states that goods in 60 bundles were of 3 cms. to 20 cms. in width. Therefore, according to this report these goods do not conform to the specification so far width is concerned, as prescribed by the invoice and the import licence. The identity of the goods been challenged only on the basis that there is difference of width but so far the nature of the goods is concerned it has not been disputed. This is a case in which exporters, seem to have committed breach by exporting not according to the correct specification. All the goods belong to one consignment shipped on board s.s. Moula Baksh" from U.S.A. 25 skids do conform to the specification and an refusal to accept these goods does not seem to be proper and claim for refusal cannot be maintained. So far the remaining 60 skids are concerned it is a case where breach if any, was primarily on the part of the consignor and unless the carriers establish from their record that these goods are the same which were shipped on board at New York under the relevant bill of lading they will be held liable as they had issued a clean bill of lading. A clean bill of lading means that the goods have been shipped in good order and condition, under proper marks and numbers as specified in the bill of lading with proper packing. The petitioners have not stated whether they have filed any claim against the Insurance Company, consignor and the carriers. If the facts as alleged in the petition are proved the petitioners would be entitled to recover damages including cost of goods, duties and charges paid by them from the consignors and the Insurance Company provided such risk was insured. The carrier will not be liable if they establish that 85 skids with nil marks and number are the same which were shipped under the relevant bill of lading. A G survey was conducted by the Insurance Surveyors, and the carriers have disowned their liability as is obvious from the order of the Assistant Collector. In the normal course the petitioners should have made a claim against the Insurance Company, the carriers and the consignor On our quarry, the learned counsel for the petitioner has stated that he is not aware whether any action has been taken by the petitioners in this regard. This creates a very anomalous situation because if the petitioners have been reimbursed by the insurance company or they have filed suit for recovery of damages they are not entitled to recover charges and duties twice over. In fact merely by producing these survey reports and short-, lading certificates the entire claim of the petitioners for non-delivery of the goods cannot be conclusively established in these proceedings. They require Ii investigation of disputed facts in which the evidence and record of the carriers will play a decisive role, which is missing in these proceedings. Unless the entire evidence is on record it is difficult to state that 85 skids available at the port are not the goods consigned to the petitioners particularly as 25 skids conform to the description of the petitioners' goods. This investigation cannot be made in these proceedings. For such claims in which disputed questions of facts are involved suit is the proper proceedings. We therefore, dismiss the petition with no order as to costs. H.B.T./P-102/K Petition dismissed.