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TMI Blog1958 (8) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... were permitted to transport Jute, Mustard Oil Seeds, Mustard Oil, Tea, Foodstuff, and Spices etc, for the financial year 1955-56 from one place in Indian Union to any other place in Indian Union through Pakistan. The conditions embodied in the bond were that the partners of the firm guaranteed to produce within two months from the date of despatch of goods from Assam, a certificate from the consignees of the due landing and receipt of the goods by them and they further undertook not to divert any cargo through Pakistan. It was further provided that in the event of short delivery at destination as compared with the consignment despatched from Assam, the petitioner-firm would undertake to pay duty and cess and such penalty as might be levied under the Land Customs Act and the rules thereunder. On the 7th March, 1955 and 12th March, 1955, the petitioner-firm despatched 1052 rnaunds of Jute from Tezpur Steamer Ghat to Calcutta via Dhubri through Pakistan water in a vessel "M.V. Raju" for being delivered to M/s. Ramdeo Harakchand, Calcutta under the terms of the aforesaid bond. The vessel was owned by M/s. Neptune Navigation of 133 Canning Street, Calcutta which carried goods on hire by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or of Central Excise and Land Customs, Jorhat and on the basis of the aforesaid bond, permission was granted in the name of the petitioner to transport goods from Assam to the other parts of the Indian Union through Pakistan territory. The conditions were similar to those mentioned in the guarantee bond referred to in the other petition. The petitioner despatched 3053 maunds of jute from Tezpur to Calcutta via Dibrugarh through Pakistan waters in the same vessel—"M. V. Raju" to M/s Milapchand Hiralal. This vessel is the same which was carrying goods despatched by the petitioner in the other petition and caught fire with the result that the petitioner's goods totally destroyed and no certificate could be produced. A notice of demand was issued on 12th April, 1956 on the petitioner demanding payment of Rs. 9420/- on account of customs duty and Rs. 78/- on account of cess. Representation was made to the Assistant Collector and the petitioner received a reply to the effect that an appeal lies to the Collector of Central Excise and Land Customs and the appeal being beyond time, no appeal could be filed. A letter dated 5th November, 1956 was received by the petitioner from the Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise its power under Art. 226 in favour of the petitioners. It was then contended that the right claimed by the petitioners is none under the contract and no contractual right can be enforced by means of a writ under Art. 226 of the constitution. Lastly, it was urged that the petitioner raised controversial points of fact as to whether there was destruction of the goods by fire or not, this court will not therefore give any relief to him under Art. 226 of the constitution. As to the point raised by the petitioner that there is no provision in the statute under which the notice could be issued, the contention in short of the Advocate-General is that as there was liability of the petitioner to pay the duty to the Government, it was open to the Assistant Collector to issue notice demanding payment of the amounts as any other creditor could have done, no objection therefore could be taken to the issue of the notice and the petitioners are not entitled to any relief on that account. 6. Section 2 of the Indian Tariff Act-Act No. XXXII of 1934 provides that there shall be levied and collected in every port to which this Act applies, the duties specified in the First and Second Sched ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the date of the despatch. The petitioners therefore, according to him, were entitled to the exception only under the conditions laid down in the contract. Apart from those circumstances, the petitioners were liable to pay the customs duty. 8.The counsel for the petitioner has however controverted this contention on the ground that in the notice of demand, it is expressly mentioned that the demand was made under the terms of the general guarantee bond executed by petitioners. The source of the levy therefore, according to the petitioner was not the provisions of Indian Tariff Act; but the terms of the bond and if the terms of the contract do not give any right to pay any customs duty in respect of goods which are not diverted to Pakistan, but are lost by fire, the respondent No. 1 had no right to demand the duty. The second line of argument is that even assuming that the source of the levy is the statutory provisions of the Indian Tariff Act and the Land Customs Act, in the present case no duty was leviable as the goods cannot be said to have been exported. The goods were despatched for Calcutta. They had to pass in transit only through Pakistan and therefore the word "expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers as such issue a notice of demand, calling upon a person to pay some money. It is not only a case of a notice by a creditor. The demand has got to be justified on some statutory basis and it will not be a valid defence to say that the petitioners could well have refused to pay the money. Moreover, in the present case, it was contended by the respondents in the counter-affidavit that the petitioners had an alternative remedy available by means of an appeal under Section 188 of the Sea Customs Act which provides for an appeal by any aggrieved person against any decision or order passed by an Officer of Customs under this Act within three months from the date of such decision or order to the Chief Customs Authority. This right of appeal can only accrue if the notice of demand is treated to be a decision or an order passed by an officer of the Customs Department. If it is an order passed by the Customs Authorities, it affects the right of the petitioners to hold property, the petitioners have thus a right to come to this Court and ask for a writ of mandamus directing the respondents not to give effect to that order unless it has got any statutory foundation. Section 39 of the Sea Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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