Randhir Singh, J.
1. This is a first appeal arising out of a suit brought by the plaintiff-respondent for the recovery of Rs. 8,182/12/- due by the appellant on account of customs duties paid in advance for the export of goods out of India. It appears that the plaintiff dealt in mustard oil and wanted to export 1870 maunds of mustard oil to East Pakistan via 'Katihar. Under the rules a permit for export is issued only after a person desirous of exporting goods deposits the export duty payable on the commodity sought to be exported in advance. The plaintiff deposited Rs. 10,990/14/- at Purnea in advance, as this was the amount of duty which would have been payable on 1870 maunds of mustard oil sought to be transported.
The plaintiff then tried to get wagons for transport of oil but only two wagons could with difficulty be had and he was able to export only 513 maunds and 6 seers of mustard oil and after deducting the export duty on this amount of oil a sum of Rs. 8,182/12/- remained in deposit with the defendant-appellant. The plaintiff then sent letters to the officers of the Customs Department for the repayment of this excess amount. There was a protracted correspondence till ultimately the plaintiff was told that the duty could not be refunded in view of the provisions of Section 40 of the Sea Customs Act. The plaintiff then gave the statutory notice of two months to the Union of India and filed the suit which has given rise to this appeal for recovery of Rs. 8,182/12/-.
2. The suit was contested by the defendant on three main grounds. Firstly, it was alleged that the cause of action arose within the jurisdiction of Purnea Court and the Court below had no jurisdiction to entertain the suit. The second contention was that the suit was barred by time and the third and last contention was that the duty was not refundable in view of the provisions of Section 40 of the Sea Customs Act.
3. The lower Court found in favour of the plaintiff on all these three points and decreed the claim. The defendant has now come up in appeal.
4. In order to decide whether the lower Court had jurisdiction to entertain the suit, the nature of the claim will have to be examined. It is not disputed that the amount sought to be recovered was deposited at Purnea and the plaintiff asked for the refund of the money and filed a suit in Lucknow Court. The plaintiff's main reliance is on the general principle of law that a debtor must seek his- creditor. The contention of the defendant, on the other hand, is that there was no relationship of a debtor and creditor in the present case and as such the suit could not be instituted in Lucknow. As pointed out above, the nature of the claim will have to be examined -into in order to arrive at a correct finding on the plea of jurisdiction.
5. The facts of the case are practically admitted. The plaintiff was desirous of exporting 1870 maunds of mustard oil to East Pakistan and the deposit of Rs. 10990/14/- was made towards the payment of export duties on this oil. It is also admitted that only 513 maunds and six seers of oil could in fact be exported for reasons beyond the control of the plaintiff. Under the Indian Tariff Act read with the Land Customs Act and the Sea Customs Act an export duty be comes leviable when goods are exported. There can be no levy of duty on goods which are not exported or which could not be exported. If for the sake of convenience the ' Government has framed ruler, for deposit or duty in advance of the export, the appropriation of duty takes place only when there is an actual export.
If no export is made, there is no appropriation of the duty which is deposited in advance. It has been contended on behalf of the appell and that the duty is not refundable. This de posit evidently was not made towards any fee payable on account of a licence or permit. It was clearly the export duty which was deposited in advance. The amount of duty which has beendeposited but not appropriated would evidently be repayable to the person who has deposited the money unless there is some provision of lawwhich bars the recovery of this amount. The learned counsel for the appellant relies on Section 40 of the Sea Customs Act. Section 40 Of the SeaCustoms Act is as follows:
'No customs, duties or charges which have been paid and of which repayment, wholly or in part, is claimed in consequence of the same having been paid through inadvertence, error or misconstruction, shall be returned, unless such claim is made within three months from the date of such payment.'
A plain reading of the above provision of law shows that the customs, duties or charges paid through inadvertence, error or misconstruction would be refundable only if a claim was made within three months from the date of such payment. There is one other provision in this very Act (Sea, Customs Act) for refund of duty paid and it is Section 140. It runs as follows :
'If any goods mentioned in a shipping bill or manifest be not shipped, or be shipped and afterwards reianded, the owner shall, before the expiration of five clear working days after the vessel on which such goods were intended to be shipped, or from which they were reianded, has left the port, give information of such short shipment or relanding to the Customs Collector. Upon an application being made to the Customs Collector, any duty levied upon goods not shipped, or upon goods shipped and afterwards reianded, shall be refunded to the person on whose behalf such duty was paid: Provided that no such refund shall be allowed unless information has been given as above required.'
Under the provisions of Section 140, quoted above, duty levied upon goods not shipped or upon goods shipped and afterwards relanded shall be refunded, to the person on whose behalf such duty was paid but there is a proviso that no such refund shall be allowed unless information of the goods not having been shipped or relanded is given within five days. No other provision in the Sea Customs Act has been brought to our notice which deals with the question of refund, It has however to be noted that Section 40 as also Section 140 both deal with the refund of duties which have actually been levied, i.e., the duties which have been appropriated.
They do not deal with amounts paid for future appropriation towards export duty. There is a clear distinction between amount appropriated towards duty and amount deposited for payment of export duty. In the former case duty which has actually been levied and paid has evidently become the property of the Government and no person would be entitled to get it back unless there was a provision of law to enable that person to get the duty already appropriated, back from the State or the Government. In the latter case, however, when an amount has been deposited to be appropriated thereafter towards export duty which may fall due, there having been no appropriation the property in the money does not pass to the Government unless export takes place and the duty is levied.
Sections 40 and 140 will have, therefore, no application to applications for refund of deposits not actually appropriated towards levy of duly. Out of the amount deposited by the plaintiff only that amount will be appropriated which was equal to the amount of export duty which fell due on the goods actually exported. The rest of the amount, viz., Rs. 8.182/12/- remained unappropriated and the property in this amount vested in the plaintiff and it never became the property of the Government. The plaintiff was, therefore entitled to claim back the amount which was held by the defendant as a deposit.
6. This being the nature of the deposit, the question arises whether the plaintiff could institute a suit in LucknOw. In view of the circumstances under which the deposit is made in advance there is evidently an implied agreement that the amount would be refundable if not appropriated and the depositee becomes a debtor for the purpose of the repayment of the money to the person entitled to get back the deposit. In this view of the matter, the plaintiff was entitled to maintain his suit in the Lucknow Courts. No direct authority on the point has been cited by any of the parties before us but a somewhat similar question arose in a case in Gappulal v. Kanderwal Brothers, (S) Am 1955 Madh-B 96 (A).
In this reported case there was, it appears, an agreement for the performance of a contract in Bombay. The contract could not be performed and the money deposited by one party became payable to the other party and it was held that the suit could be instituted in the Court in the Jurisdiction of which the plaintiff in that suit resided, as the person who held the money was liable to make the refund at the place where the person to whom the payment had to be made resided. Reliance has been placed by the learned counsel for the appellant on a ruling of this (N. P.) (Dec.) 1957 All. D.F./51 Court in Allahabad Bank Ltd. v Gulli Lal : AIR1940All243 .
This case related to a fixed deposit for which a receipt had been issued and the plaintiff in this reported suit had not filed that fixed deposit receipt. As the deposit, in the case was made under a written agreement, the plaintiff could not institute a suit without proving the agreement, Which was not done. This case was hardly any application to the facts of the present case. We are. therefore, of opinion that suit of the nature which is before us could be instituted in the Court below.
7. The next point raised on behalf of the appellant was that the suit was barred by time, as the application for refund had not been made within three months as provided in Section 40 of the Sea Customs Act. As pointed out above, Section 40 of the Sea Customs Act has no application to the facts of the present case. No refund of any duty paid and appropriated is sought for on the ground of an erroneous payment or of payment due to misconstruction or inadvertence. The limit of time prescribed in Section 40 of the Sea Customs Act did not, therefore, apply to this case, as the plaintiff does not seek refund on any of these grounds mentioned in Section 40 but claims the repayment of money held in deposit but not appropriated.
8. The last and the only remaining submission was that the duty was not refundable. We have already dealt with this point while deciding the issue of jurisdiction and we are of opinion that there was no bar to the plaintiff claiming back the money which was held in deposit and which had not been appropriated towards payment of export duty.
9. The view taken by the Court below on all these three points appears to us to be correct and! the learned Civil Judge has dealt with the points exhaustively. AS a result, the appeal fails and is dismissed with costs.