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TMI Blog2015 (1) TMI 1169X X X X Extracts X X X X X X X X Extracts X X X X ..... .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 Rs. 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 the goods received and consignment note bill of ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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". 13. In reply to the letter, dated 22nd July, 1993 of the appellant, the respondent, by its letter, dated 31st July, 1993, called upon the appellant to confirm inter alia "that the goods covered under the said consignment note were available with the respondent and the location of the said goods". The appellant replied by its letter, dated 16th August, 1993 withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to Bangladesh Customs Authorities at Benapole. The opposite party's obligation 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 dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal. 28. Elaborate submissions are made by the learned senior counsel appearing 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp;The export report to be delivered under Section 41 of the Customs Act, 1962 (52 of 1962) by the person-in-charge of the vehicle carrying export goods shall be in the appended form (See Form 73 in Part 5) to these regulations. (2) It shall be printed on white paper of 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, 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. 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)&nbs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial documents. - The following public documents may be proved as follows.- (1) to (3) x x x (4) The acts of the Executive or the proceedings of the Legislature of a foreign country, - by journals published by their authority, or commonly received in that country as such, or by a copy of certified under the seal of the country or sovereign, or by a recognition thereof 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 docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, 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 application claiming drawback or is it the date of the entry of the goods for export from 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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