1965 (6) TMI 4 - HC - Central Excise

Summary

Issues Involved:
1. Liability for export duty and cess due to loss of goods during transit.
2. Validity and enforcement of the bond executed by the respondent.
3. Jurisdiction of the High Court to issue writs against the Union of India under Article 226 of the Constitution.

Detailed Analysis:

1. Liability for Export Duty and Cess Due to Loss of Goods During Transit:
The respondent, owner of Atiabari Tea Estate, sent tea to Calcutta via a route passing through Eastern Pakistan. The consignment was lost when the steamer sank in Pakistan. The Central Excise Department demanded export duty and cess, which the respondent contested, arguing that no duty was payable due to the total loss of goods. The court noted that the Union of India admitted the loss in its written statement, making any further demand for duty and cess frivolous. The court held that the respondent was not liable for export duty or cess as there was no sufficient evidence of loss of cargo arising from the sinking of the steamer.

2. Validity and Enforcement of the Bond Executed by the Respondent:
The respondent executed a bond guaranteeing to pay duty and cess if there was short delivery. The court acknowledged that the bond was a contract between the parties. However, it emphasized that the bond's terms contemplated that if a sufficient explanation was provided for short delivery, the respondent would not be held liable. Given the admitted total loss of goods, the court concluded that the bond's terms could not be enforced against the respondent, as the explanation of loss was conclusive.

3. Jurisdiction of the High Court to Issue Writs Against the Union of India Under Article 226 of the Constitution:
The appellant argued that the High Court had no jurisdiction to issue a writ against the Union of India when the Rule Nisi was issued in 1955, as the Fifteenth Amendment to the Constitution, which conferred such jurisdiction, came into force in 1963. The court, referencing decisions from other High Courts and its own Full Bench, held that the amendment was procedural and retrospective. Therefore, the High Court had jurisdiction to issue writs against the Union of India in this pending case, and the writ of Mandamus issued by Sinha J. was upheld.

Conclusion:
The appeal was dismissed, affirming that the respondent was not liable for export duty and cess due to the total loss of goods, and the bond's terms could not be enforced. The High Court's jurisdiction to issue writs against the Union of India was upheld based on the retrospective application of the Fifteenth Amendment to the Constitution. Each party was ordered to bear its own costs.