9911796707
TMI Blog2015 (1) TMI 1169X X X X Extracts X X X X X X X X Extracts X X X X ..... nse to the said letter, the appellant herein, by its letter, dated 22nd July, 1993, assured the respondent that all the five consignments would be rebooked for delivery at New Delhi. The appellant further called upon the respondent “to surrender the original consignee copies alongwith the invoice copies and pay one side freight and octroi at its Ahmedabad office for rebooking”. - National Commission held in favour of Respondent. Held that:- The appellant did not plead as to what is the procedure prescribed under the law of Bangladesh for the unloading of the imported goods at its Customs Stations? Nor does the appellant give the details of the dates of the actual delivery of each of the 4 consignments at Bengapole - However, the appellant placed heavy reliance on a letter, dated 11-4-2002 allegedly written by some officer of the Customs Department of the Republic of Bangladesh at Beanpole addressed to the Joint Commissioner, Customs Department, Benapole - Jessore (Bangladesh). It refers to four bills of entry, dated 9-1-1993, 13-12-1992, 20-12-1992 and 11-2-1993. It is rather difficult to understand the content of this document, apart from the other problems with the document wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n claimed a drawback either under Section 74 or under Section 75. Be that as it may. In either case, the right to a drawback accrues to the exporter once the exporter makes an entry for export of the goods under Section 50 of the Act and on the making of an order by the proper officer under Section 51 permitting clearance and loading of the goods. Rules are made by the Government of India from time to time in this regard. The Rules currently in vogue are known as the “Customs, Central Excise, Duty and Service Tax Drawback Rules, 1995”, which are made in exercise of the rule making authority conferred under the various enactments including the Customs Act. However, these rules are subsequent to the export transaction in question. Neither the relevant rules governing the situation on the date when the respondent claimed the drawback are placed before us nor is there any clear pleading by either party as to the relevant date on which such a claim for drawback could be made. We are not sure whether under the rules applicable to the transaction in question, whether it is the date of the actual delivery of the goods in the foreign country which entitles the exporter to file an applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant herein to pay an amount of ₹ 29,74,321.45 with interest @ 12 per cent per annum from the date of the filing of the complaint till the date of realization apart from the cost quantified at ₹ 25,000/-. 3. The substance of the complaint before the National Commission is as follows :- 4. Both the parties to the complaint are public companies under the Companies Act. The respondent is engaged in the business of manufacturing and selling of yarn and export of fabric of different specifications, whereas the appellant is engaged in the business of transporting goods from one place to the other for consideration. 5. In the year 1992, the respondent received an indent for export of 100 per cent cotton yarn fabric specified therein, the details of which are not necessary for the purpose of this judgment. The said indent was placed by one M/s. Aleef Enterprises (Trading), Dhaka calling upon the respondent to export the goods specified in the indent to M/s. Azim Garments Ltd. in Dhaka, Bangladesh. 6. According to the complaint, the respondent was required to dispatch the entitled goods and negotiate various documents including invoice, consignment copy of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duly communicated by the respondent through its banker to the Islami Bank Bangladesh Ltd. It is specifically averred in the complaint that the said transaction was originally covered by letter of credit opened by the said Islami Bank but the said letter of credit had expired. Therefore, the documents mentioned above were sent to the said banker on collection basis. 11. It appears from the complaint that the Islami Bank Bangladesh, though received all the documents sent by the respondent, did not honour the same and made no payment for a long time. In the said circumstances, the respondent through its banker recalled all the documents in order to re-import the goods back to India . Admittedly, the said documents were returned unpaid by the Islami Bank Bangladesh to the complainant s banker. 12. Upon the return of the original documents by the Islami Bank, the respondent herein, by its letter, dated 12th July, 1993, called upon the appellant to rebook all the five consignments : for transportation to New Delhi and deliver the same to the complainant at New Delhi . (Para 10 of the Complaint)) In response to the said letter, the appellant herein, by its letter, dated 22nd July, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving unnecessary correspondence and due to this long delay the demurrage is going on higher side day by day @ 3 paise per kg. per day. We hope, you understood all the points and take necessary action immediately. 16. The said letter was followed by another letter of the appellant, dated 29th September, 1993, the relevant portion reads as follows : Sub. : Ch. No. A-08465, dated 28-10-1992 Ch. No. A-08565, dated 5-11-1992, Ch. No. A-08658, dated 16-11-1992 Ch. No. A-098738, dated 29-12-1992 A-11351, dated 15-2-1993 All Ex. Ahmedabad to Benapole This has reference to our earlier letter No. SBD/OPN/INM/3569/93, dated 11th September, 1993 regarding above consignments. As per the reply received from our Calcutta office, first four consignments have already been exported and the documents were sent to the party directly. The last consignment i.e. Ch. No. A-11351 is lying at our Calcutta Godown. If you want to rebook this consignment to Delhi, you please send the original consignee copy and our dues by D/D to our Ahmedabad or Calcutta Office directly for their necessary act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was to transport the said goods by their lorry and to deliver the same to the Benapole Bangladesh Custom Warehouse as per prevalent procedure of exporting the materials to beanpole (Bangladesh) from India. The opposite party duly transported the said four consignments and delivered the same at Benapole. 21. Coming to the letter, dated 11-9-1993 of the appellant whereunder (according to the respondent) the appellant agreed to rebook the five disputed consignments to Delhi, it is the defence of the appellant that (a) the said letter only explained the procedure for rebooking of the consignments, and (b) the admission regarding the custody of the five consignments was a mistake of fact in view of the communication gap between the appellant s headquarter and its various branch offices. Within a short period after delivering the letter the appellant realized its mistake and explained its position by subsequent letter, dated 29-9-1993 (the contents of which have already been extracted earlier). 22. It is further the defence of the appellant that once the goods crossed Indian customs frontier during the course of export of such goods, only the exporter can bring back the goods by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing for either side in support of their respective cases virtually reiterating their respective pleadings. 29. Since the case arises out of a contract for transport of goods by the appellant to a foreign country, an examination of the relevant provisions of the Customs Act, which deal with export of goods, is necessary. Import and export of goods into or out of India is regulated by the Customs Act, 1962 and the Rules and Regulations made thereunder. Section 50 of the said Act stipulates that the exporter of any goods by land is required to make an entry thereof by presenting to the proper officer BILL OF EXPORT. Under Section 51, the proper officer on receipt of a BILL OF EXPORT (contemplated under Section 50) if satisfied that the exporter has paid the duty and other charges under the Act, if any, and that such goods are not prohibited goods, may make an order permitting clearance and loading of the goods for exportation. 30. Under Section 40, a person-in-charge of a conveyance is not permitted to load export goods at a customs station unless a BILL OF EXPORT duly passed by the proper officer has been handed over to the person-in-charge of the conveyance by the exporter. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f size 21.5 cms x 34.5 cms of durable quality. 37. Thus, the movement of goods in the course of export is meticulously regulated and recorded. 38. The appellant, who claims to have exported 4 of the 5 consignments handed over to it by the respondent, could not have loaded the goods at Petrapole Customs station without having obtained a BILL OF EXPORT duly passed by the proper officer and the person-in-charge of the conveyance owned by the appellant could not have either loaded the goods in the vehicle or departed from Petrapole Customs station without delivering to the proper officer an EXPORT REPORT in the prescribed form contemplated under Section 41. 39. The best proof of the case of the appellant that it had in fact transported the goods in dispute beyond the Petrapole Customs station and out of the customs frontier of India would have been to produce the abovementioned two documents i.e. copies of the BILL OF EXPORT and EXPORT REPORT pertaining to the four consignments in dispute. There is no pleading on behalf of the appellant before the National Commission nor any discussion in the order under appeal regarding the existence of the abovementioned two documents vis-a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2-1993. The relevant portion of the document reads as follows : (1) Bill of entry No. - 14305, dated 9-1-1993 of shipping bill No. 4949/DB, dated 28-12-1992 has been accepted by M/s. Azim Garments Limited Dhaka - Bangladesh. Goods-fabrics 21 bales and name of shipping agent M/s. Mun Mun Shipping - Benapole. (2) Bill of entry No. 2267, dated 13-12-1992 of shipping bill No. 3833/DB, dated 2-11-1992 has been accepted by M/s. Azim Garments Limited, Dhaka - Bangladesh. Goods - fabric 30 bales and name of shipping agent Their Green (Mun Mun) Benapole. (3) Bill of entry No. 12516, dated 20-12-1992 of shipping bill No. - 3834/DB, dated 2-11-1992 has been accepted by M/s. Azim Garments Ltd. Dhaka - Bangladesh. Goods fabrics 30 bales and name of shipping agent M/s. Madeezuddin (A-29). (4) The goods of shipping bill No. 699/DB, dated 11-2-1993 has not been accepted by the party. The goods have been auctioned. 44. It is rather difficult to understand the content of this document, apart from the other problems with the document which shall be discussed later. It speaks about three bills of entry having had been accepted through three different shipping agents of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of in some Central Act; (5) x x x (6) Public documents of any other class in a foreign country, - by the original, or by a copy certified by the legal keeper thereof, with a certificate under the seal of a Notary Public, or of an Indian Consul or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country. 46. There is nothing on record to establish that the abovementioned letter has been duly proved in accordance with Section 78 of the Evidence Act. 47. For all the above-mentioned reasons, the defence of the appellant based on the letter, dated 10-4-2002 (supra) that the appellant had delivered four consignments entrusted to it by the respondent at the Benapole Customs Station, Bangladesh cannot be accepted. 48. The other submission of the appellant that in view of the fact that the respondent herein claimed a duty drawback on the strength of the export of the goods which are the subject matter of dispute in this appeal, the respondent cannot dispute the fact that the goods were duly exported, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom India. In the absence of any material on record such as the one indicated above, the mere fact that the respondent did claim (the respondent admitted that they did claim a duty drawback as alleged by the appellant) a duty drawback does not necessarily lead to the inference that the appellant had duly delivered the goods in question at Benapole Customs station. 53. Under the 1995 Drawback Rules, which are in force today, Rule 13 stipulates that the claim for a drawback can be filed on the date when the proper officer makes an order permitting clearance and loading of the goods under Section 51 of the Act. We refer to Rule 13 not because it is applicable to the facts of the case, but only to demonstrate that the law clearly provides for the date and event, the happening of which, entitles the exporter for seeking the drawback. 54. In view of the fact that the appellant admitted the entrustment of goods by the respondent to the appellant for transportation to Benapole (Bangladesh), the burden to prove that the appellant satisfactorily discharged his legal obligation to deliver the goods at Benapole (Bangladesh) in accordance with law is on the appellant which burden the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
