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TMI Blog1965 (6) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... railway administration arranged for carriage of the tea through the R. S. N. Co. Ltd. and T.G. N. and Rly. Co. Ltd. to Calcutta by river route, part of which was in Eastern Pakistan. The excise department required the respondent to execute a bond and such a bond was executed by the respondent. The bond was addressed to the Collector of Land Customs, Calcutta and it provided that in consideration of permission granted to the respondent to transport the goods by steamer or rail through Pakistan to places in India the surety guaranteed to produce and deliver within two months from the date of despatch, certificates from consignee of due reception of goods by them. There was an undertaking not to divert any goods destined for India enroute. There was a further provision that in the event of short delivery at the destination in India as compared with the consignments despatched Surendra Kumar Nag, Manager, Atiabari Tea Estate and Kedarnath Banerjee Manager, Patkapara Tea Estate, Sureties, undertook to pay duty and/or cess if any such penalty as may be adjudicated by the Customs Collector under the Land Customs Act, after giving an opportunity to the exporter to explain the causes of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith a serious accident on 22-7-1953 near Jagannathganj, East Pakistan, as a result of which the steamer sank with loss of cargo on board which included the consignment in suit. For such accidental loss the defendant cannot, in any way, be held liable. Similar allegations were also made in the written statement filed on behalf of the T.G.N. and Rly. Co. Ltd. Mr. Amiya Mukherjee, learned Advocate for the appellant, contended that on a reference to the application for Export which is at pp. 32-34 of the paper book, it would be clear that the respondent applied for carriage of goods through Pakistan territory. He argued that as soon as the goods crossed the customs frontier of India, export duty was payable on the same. In this case, it was argued, a concession was made, namely that instead of realising export duty a bond was taken from the respondent. Under the terms of this bond the respondent was bound to pay export duty and cess if there was short delivery. In this case, Mr. Mukherjee argued, undoubtedly there was short delivery as the goods did not arrive at the destination in the Union of India. The respondent, Mr. Mukherjee argued, was called upon by the letter dated October 22/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being satisfied about the loss, and production of documents by the respondent, could not have improved the position. 6.In our opinion the contentions of Mr. Chakravarty are well founded-documents undoubtedly were required by the appellants as evidence of loss. But the appellants must have been satisfied about such loss before making the admission on the written statement mentioned above. There is, therefore, in our opinion, no force in the appellant's contention that the respondent was not entitled to resist the claim for export duty and cess on the ground that there was no sufficient evidence of loss of cargo arising from the sinking of the steamer. 7.Mr. Chakravarty next contended that no export duty or cess could be claimed by the appellants in this case, because it was not a cess of export at all. The respondents, Mr. Chakravarty argued, had entered into a contract of carriage of goods from one part of the Union of India to another part, and part of the route through which the goods were to be carried was in Pakistan. But the fact that the goods were carried through Pakistan territory in part, it was argued, did not make it a case of export duty. Mr. Chakravarty referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the respondents imposing liability on the happening of certain contingencies. He argued that the contingencies upon which the liability of the respondent was dependent, had happened, namely short delivery and therefore, the respondent was liable on the terms of the bond. 9.Mr. Roy next aruged that the trial court was in error in holding that in order to amount to export there must be an animus or intention to export. He argued that the intention to export was wholly immaterial in considering whether goods had been exported. Goods might be taken across the customs boundary without any initial intention to export, but with the intention of bringing them back to the Union of India. But after such goods had crossed the customs frontiers they may be delivered or disposed of by the owner or his agents, and such a case must be treated to be a case of export and the owner must be held liable for export duty. The 'animus' or the intention to export cannot, therefore, Mr. Roy argued, be treated as a material factor in considering the liability of a party for export duty. In our opinion, Mr. Roy's contentions are well founded. The intention to export is not a material factor to be taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven regarding short delivery, the respondent would not be held liable for expert duty or cess. In this case the explanation which the respondent offered and which was admitted by the appellants, could not conceivably be more conclusive. Therefore, even on the terms of the bond itself the liability of the respondent for export duty and cess cannot be said to have arisen. 12.The next point urged by Mr. Mukherjee was that no writ could be issued against the Union of India. The Rule Nisi was issued by this court on September 5, 1955. On the date of this rule was issued, Mr. Mukherjee argued, this court had no jurisdiction to issue a writ against the Union of India. The Fifteenth Amendment of the Constitution by the Constitution (Fifteenth Amendment) Act, 1963, came into force on October 6, 1963, and it was by this amendment that jurisdiction was conferred upon this court to issue writs under Art. 226 of the Constitution against the Union of India in appropriate cases as set out in the amended Art. 226(1A) of the Constitution. Mr. Mukherjee argued that the writ petition having been moved long before the amendment of Art. 226 of the Constitution, the Rule Nisi could not be issued agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is amendment must be held to be retrospective in operation. Therefore, it was argued, that in this appeal, the fifteenth amendment of Art. 226 of the Constitution should be given effect to, as the proceeding was a pending proceeding.
14. In our opinion this contention of Mr. Chakravarty is well founded. It is true that the Rule Nisi was issued, and the same was made absolute before fifteenth amendment of the Constitution came into force. But this amendment has conferred upon this court the jurisdiction to issue appropriate writs against the Union of India. It is well settled that an appeal is a continuation of the proceedings out of which it arises. The appeal now before us, therefore is a continuation of the proceedings arising out of the writ petition. In exercise of the jurisdiction, conferred upon this court by the fifteenth amendment of the Constitution, appropriate writs under Articles 226(1) and (1A) may therefore be issued by this court in disposing of this appeal and the issue of the writ of Mandamus by Sinha J. is accordingly upheld.
For the reasons mentioned above, this appeal fails and is accordingly dismissed : Each party to pay its own costs. X X X X Extracts X X X X X X X X Extracts X X X X
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