Understanding the jargon called arbitration.

What is an arbitration?

Arbitration is a mechanism for adjudication of the dispute between two parties by a private person or a panel of person chosen by the parties who are called Arbitrator or Arbitral Tribunal. Arbitration is an alternative dispute resolution Technique in which the Court or the State have the very limited role to play.

Procedure of Arbitration.

Unlike Court the Arbitrator is free to choose his/her own procedure. However, the parties are free to agree on any particular procedure to be followed by an Arbitrator and in such case such procedure shall be binding upon the Arbitrator and Arbitration shall be conducted accordingly. Continue reading

Definition of Bill of Entry, Lading and Delivery Order

Bill of Entry, Bill of Lading and Delivery Order:

The terms like Bill of Entry, Bill of Lading and Delivery Order create confusion. Often these terms are used as if these are synonyms. But they are not. Each term has its precise definition and legal connotation.

Bill of Lading:

Bill of Lading was defined as: “any instrument signed by the owner of a vessel or his agent, acknowledging receipt of the goods described therein and undertaking to deliver the same at a place and to a person mentioned or indicated therein” in Indian Stamp Act, 1879 but that Act was repealed by Stamp Act of 1899 which contained no definition of Bill of Entry.
A cargo at sea while in the hands of the carrier is necessarily in-capable of physical delivery. During this period of transit and voyage, the bill of lading by the law merchant is universally recognized as its symbol, and the endorsement and delivery of the bill of lading operates as a symbolical delivery o cargo. Property in the goods passes by endorsement and delivery of the bill of lading, whenever it is the intention of the parties that the property should pass just as under similar circumstances the property would pass by an actual delivery of the goods. And for the purpose of passing such property in the goods and complete the title of the endorse to full possession thereof, the bill of lading until complete delivery of the cargo has been made on shore to some one rightfully claiming under it, remains in force as a symbol, and carries with it not only the full ownership of the goods, but also all rights created by the contract of carriage between the shipper and the shipowner. It is a key which in the hands of a rightful owner is intended to unlock the door of the warehouse, floating or fixed,in which the goods may chance to be. ( See Sanders Bros. v. Maclean & Co, (1883) 11 QBD 327, at Pg. 341)
A bill of lading is “a writing signed on behalf of the owner of the ship in which goods are embarked, acknowledging the receipt of the goods and undertaking to deliver them at the end of the voyage subject to such conditions as may be mentioned in the bill of lading”. It is well-settled in commercial world that a bill of lading represents the goods and the transfer of it operates as a transfer of the goods. (See J.V.Gokal & Co. (P) Ltd. v. Asst. Collector of Sales Tax, AIR 1960 SC 595)

Bill of Entry:

‘Bill of entry’ is distinct and different from the ‘bill of lading’ or delivery order, copies of which are to be enclosed with the ‘bill of entry’.

According to Bombay High Court “bill of entry is an innocuous matter and it does not create any obligation or liability on the maker thereof and no civil consequences flow from a mere filing of bill of entry. Upon filing of such bill of entry, the Customs authorities proceed to decide the question about the necessity or otherwise of payment of customs duty and in this fashion, bill of entry merely starts the ball rolling for customs duty.” (See  Union of India v. Chowgule & Co. P.Ltd., [1985] 20 ELT 57) But this does not define the Bill of Entry.

Gujarat High Court considered following question:

Whether ‘bill of entry’ for that purpose can be said to be a deliver order in respect of goods i.e. an instrument entitling any person to the delivery of any goods?

Presentation of ‘bill of entry’ merely on clearance of goods is given for home consumption or for warehousing, and is distinct and different from that of delivery of goods…. The function of the State requires creation or generation of documents such as:

[i] Intimation of arrival of ship issued/signed by Customs House Agent of the importer;
[ii] Import General Manifest signed by the person in charge of the vessel declaring, inter alia, cargo and goods carried by the vessel;
[iii] ‘Bill of entry’ signed by the importer/consignee declaring particulars in respect of goods, namely, the quantity, numbers of packages, value, vessel’s name, country of origin relevant heading of the Customs Tariff under which the goods are classifiable etc. and
[iv] ‘Bill of lading’ or delivery order etc. But all of such documents will not be an instrument of delivery order for the purpose of Entry 24

Delivery Order:

Post amendment, with effect from 1.4.2006, Entry 24 of Stamp Act (of India) was as under:

“Delivery order in respect of goods, that is to say, any instrument entitling any person therein named or his assigns or the holder thereof, to the delivery of any goods lying in any dock or port, in any warehouse in which goods are stored, or deposited on rent or hire, or upon any wharf, [when such goods exceed in value one hundred rupees]”

Gujarat High Court has held that a Bill of Entry is not an order of delivery, therefore, it cannot be held that ‘bill of entry’ is an instrument entitling a person named therein or assigns or holder thereof to get delivery of any goods lying in any dock or port or in any warehouse. It is one of the documents, which is required to be produced before the Customs authorities for clearance of goods for home consumption under Sec. 47 of the Customs Act. For the purpose of clearance, entry of goods of importation is required under Sec. 46 enabling the importer of goods to present to the proper officer a bill of entry for home consumption or warehousing. But it does not automatically become delivery order as distinct and different from the clearance of the goods.