9911796707
TMI Blog1971 (11) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... xportable surplus of Nepal was only 500 M.T. is not a positive proof to show that if more than 500 M.T. dal was exported from Nepal, the part of the exported dal must be of Indian origin. The dal imported from India might have been consumed and Nepalese dal might have been ex-ported. That apart, there is no material on the basis of which one could reasonably come to the conclusion that 250 M.T. dal which the appellant was seeking to export to Cairo was not Nepalese dal. In our opinion, there was absolutely no basis for the conclusion of the adjudicating officer that the dal in question was of Indian origin. The customs authorities have not placed any material before the court to show that the governments concerned have taken any measure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtified by the Nepal Customs Officers at Birganj and Nepalganj and by the Indian Customs Officers at Rupadiah and Raxaul. After the dal reached Calcutta and when it was about to be shipped, the appellant was served with a notice to show cause by the Assistant Collector of Customs as to why the entire consignment should not be confiscated and penal action taken against the appellant for having re-exported the dal that had been exported from India to Nepal, in contravention of the terms of the treaty entered into between India and Nepal in 1960. The appellant pleaded that the dal in question was not of Indian origin and further even if it is found to be a dal of Indian origin, by exporting the same, he had not contravened any of the terms of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in appeal to the appellate bench of the Calcutta High Court. 5.The appeal was heard by a bench consisting of Mitra and Sen, JJ. Mitra, J. differing from the conclusions reached by the learned single judge came to the conclusion that the adjudicating officer's conclusion that the dal in question was of Indian origin is a sustainable conclusion and further by attempting to export that dal to Cairo, the appellant contravened the terms of the treaty entered into between India and Nepal. As a result of those conclusions he allowed the appeal and dismissed the writ petition. Sen, J. agreed with the conclusion reached by the learned single judge that the dal is not proved to be of Indian origin and that by exporting the same from Nepal, the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nepalese dal. Hence the adjudicating officer could not rely on any oral evidence for reaching the conclusion that the dal was of Indian origin. He solely relied on a booklet published by the National Trading Co. of Nepal. This booklet indicated that the Nepal's total exportable surplus of dal was about 500 M. T. On the basis of that information the adjudicating officer jumped to the conclusions that as more than 500 M.T. of Nepalese dal had been exported from Nepal in 1968 by various exporters the dal exported by the appellant should be considered as being of Indian origin. These conclusions are without any basis. From the material on record, it is clear that Nepal was both exporting and importing dal to and from India. Hence the fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods imported to Nepal from India. Art. 7 of the treaty provides : "Goods intended for import into or export from the territories of either Contracting Party from or to a third country shall be accorded freedom of transit through the territories of the other party. No distinction shall be made which is based on the flag of vessels, the place of origin, departure, entry, exit, destination or ownership of goods." 10. This Article clearly provided that in the matter of transit, the contracting parties should not show any distinction based on the place of origin of the goods in transit. This clause runs counter to the argument advanced on behalf of the customs authorities. Reliance was placed on behalf of the customs authorities on the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any measure for the purposes mentioned above. Hence there is no basis for coming to the conclusion that any of the terms of the treaty or even the assurances given by means of letters exchanged between them had been contravened. 13. In the result, it is clear that the order of the adjudicating officer was without the authority of law and was wholly invalid. We accordingly allow this appeal, quash the order of the customs authorities confiscating the dal in question. 14. Now coming to the question of issuing a writ of mandamus directing the respondents or any of them to deliver possession of the seized dal, we would have found no difficulty in issuing the mandamus asked for if the seized goods had been in the possession of the customs a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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