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Collector of Customs Vs. Shanmukha Vilas Cashew Traders - Court Judgment

LegalCrystal Citation
SubjectCustoms;Contract
CourtKerala High Court
Decided On
Case NumberWrit Appeal No. 53 of 1985
Judge
Reported in1986(10)ECC286; 1986LC350(Kerala); 1986(24)ELT500(Ker)
ActsCustoms Act, 1962 - Sections 129A and 131; Contract Act - Sections 3
AppellantCollector of Customs
RespondentShanmukha Vilas Cashew Traders
Appellant AdvocateGovernment Pleader (Central)
Respondent Advocate T.L. Viswanatha Iyer, Adv.
DispositionAppeal dismissed
Cases ReferredShaw Bhagwan v. Collector of Customs
Excerpt:
cus. act, 1962, sections 129a, 131 - indian contract act, section 3 - exports--extension for performance of contract with foreign buyer is not novation of contract. negligible difference in sale price (without loss of foreign exchange) does not justify court interference. writ petition not barred if alternate remedy not adequate and efficacious. - .....under section 129a of the customs act or by way of revision under section 131 of the said act. the learned judge is seen to have dealt with both the points, rather elaborately, in the judgment appealed against. on the first point, the learned judge found that the point was covered by section 3 of the contract act. the case was only one where the extension of time was granted for performance of the contract, without giving the character of a new contract to attract the provisions of novation of the contract. it was also pointed out by the learned judge that the price agreed to between the parties for the sale of 500 cartons was not lower than that was obtainable on 11-4-1983, on which date the contract (which could not be fulfilled on account of labour trouble in the factory of the.....
Judgment:

Bhaskaran, Ag. C.J.

1. We have heard the Central Government Pleader for the appellant, the Collector of Customs and the Counsel for the respondent, who was the petitioner in the original Petition. The counsel for the appellant has placed two points for our consideration ; (1) that there was a novation of the contract; and the attempt on the part of the respondent-petitioner was to export cashew kernels for a price below the international price, thus depriving our country of foreign exchange this country was legitimately entitled to receive ; and (2) that the respondent-petitioner had an alternative remedy either by way of appeal under Section 129A of the Customs Act or by way of revision under Section 131 of the said Act. The learned Judge is seen to have dealt with both the points, rather elaborately, in the judgment appealed against. On the first point, the learned Judge found that the point was covered by Section 3 of the Contract Act. The case was only one where the extension of time was granted for performance of the Contract, without giving the character of a new contract to attract the provisions of novation of the contract. It was also pointed out by the learned Judge that the price agreed to between the parties for the sale of 500 cartons was not lower than that was obtainable on 11-4-1983, on which date the contract (which could not be fulfilled on account of labour trouble in the factory of the respondent-petitioner) was entered into. The only difference between the terms of the contract then and now is that instead of 500 cartons of 320 Grade Kernels to be exported at $1.55 per pound in terms of the contract as it was entered into on 11-4-83, it has now been proposed to export 150 cartons of 320 Grade kernels at the rate of I 1.55 per pound and to sell the balance 350 cartons of inferior quality, obtained in the course of process for a slightly lesser price, compared to 135 cartons. The appellants do not appear to have case that the total earning of the foreign exchange resulting from the sale at the rates would be less than what would have been fetched if 500 cartons of 320 grade kernel was sold at $ 1.55 per pound. On the question of price difference, we do not find that a case has been made out for our interference in appeal.

2. As far as the question of alternative remedy is concerned, the learned Judge has pointed out that the remedy by way of appeal under Section 129A or revision under Section 131 of the Custom Act would not be adequate and efficacious, placing reliance on the decision of the Supreme Court reported in Collector of Customs, Cochin v. A.S. Bava A.I.R. 1968 SC. 13 distinguishing the decision of the Supreme Court in Tilaghur Paper Mills Co. Ltd. v. State of Orissa (A.I.R. 1983 S.C. 603) and in Shaw Bhagwan v. Collector of Customs (A.I.R. 1971 Calcutta 112). We do not therefore, think that any case for interference by us is made out.

3. The result, therefore, is that we dismiss the appeal without being admitted to file.

4. Soon after the judgment pronounced, the Central Government standing counsel made an oral request for leave to appeal to the Supreme Court. We do not find any substantial question of general importance which requires to be decided by the Supreme Court is involved in this appeal. Hence leave declined.

5. Issue carbon copy of this judgment to the counsel for the appellant, on usual terms, if applied for in that behalf.


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