A.N. Ray, J.
1. This is a suit far a declaration that the collection of export duty paid by the plaintiff amounting to Rs. 4320/-, 6840/- and 5490 was illegal and void and for a declaration that the plaintiff is entitled to recover Rs. 10,406/4/- from the defendants.
2. The plaintiff's case is that on 22-11-1951 the plaintiff submitted to the Land Customs Officer-in-charge, Land Customs Station, Calcutta, three applications for exporting mustard oil to Eastern Pakistan, The export duty payable to the Customs Authority on mustard oil for export to Pakistan prevailing on 22-11-1951 was eight annas per pound and on such basis the duty on the quantities amounted to Rs. 4320/-, Rs. 6840/- and Rs. 5490/-. The Land Customs Officer-in-charge directed and/or ordered the plaintiff 22-11-1951 to pay or de-posit the aforesaid sums as a condition precedent to (he issue of the necessary permits for exporting the goods.
3. The plaintiff's contention is that the Customs duty on the goods could be levied and/or was payable only at the rate prevailing at the time when the export should The effected. By a notification dated 24-11-1951 issued by the Government of India, it was declared in exercise of powers conferred by Section 23 of the Sea Customs Act, 1878, that the duty leviable on mustard oil in excess of As. -/3/-per pound is to be exempted. Such exemption came into effect on 24-11-1951. The plaintiff came to know about it after November 1951.
4. The plaintiffs case is that the collection or realisation of duty at a rate contravening the notification dated 24-11-1951 was, and is illegal, ultra vires and contrary to the Constitution of India. The plaintiff states in paragraph 6 of the plaint that under a mistake that Customs duty on mustard oil meant for export to Eastern Pakistan continued to fee right annas per pound and in ignorance of the fact that such duty had been reduced, the plaintiff deposited the sum of Rs. 4320/- on or about 26-11-1951, and the sums of Rs. 6840/- and Rs. 5490/-, both on 29-11-1951. The plaintiff alleges that the defendants knew or should have known that the rate of duty had been reduced and that the plaintiff was making the payment under a mistake and that the defendants had no jurisdiction to accept or realise payment in excess of rates sanctioned by law.
5. In paragraph 7 of the plaint, the plaintiff states that the goods were exported from India on or about 30-11-1951 and on or about 3-12-1951 the plaintiff came to know about the reduction in the rate of Customs duty.
6. The plaintiff thereafter by a letter dated 21-12-1951 claimed refund of Rs. 10,406/4/- paid in excess, being the difference between Rs. 16,650/-the sum paid at eight annas per pound, and Rs. 6243/12/-, being the sum calculated at three annas per pound.
7. The defendant No. 2, the Assistant Collector of Land Customs informed by a letter dated 17-3-1952 that the matter was receiving attention of the Government of India. Thereafter by a letter dated 8/9 May, 1952, the defendant No. 2 purported to reject the plaintiff's claim for refund and informed that the rate of duty applicable to goods tendered for export would be the rate of duty as in existence on the date of the submission of the shipping bill and that as the application was received on 22-11-1951 the rate of duty was correctly assessed at eight annas per pound. Under these circumstances, the plaintiff contends that the pretended order dated 9-5-1952 was, and is illegal and the plaintiff claims refund of Rs. 10.406/4/-.
8. The defendants in the written statement allege in paragraph 3 that the rate of duty leviable and payable in respect of any goods to be exported is the rate in force on the date of submission of the application for exporting the said goods. The defendants further state that the exemption which came into effect on 24-11-1951 did not and could not apply to or affect the applications of the plaintiff. The defendants further state that the dates of actual export of the consignment were 28-11-1951 and 30-11-1951 and deny that the payments by the plaintiff were under any mistake.
9. The following issues were framed at the trial:
1. Were the consignments in question liable to duty at 8 annas per Ib. or at 3 annas per Ib. under the Notification dated 24-11-51?
2. Was the plaintiff aware of the Notification dated 24-11-1951 when he deposited the duty as alleged in the plaint?
3. To what relief, if any, is the, plaintiff entitled?
9a. The plaintiff examined himself and stated that he deposited the export duty as mentioned in paragraph 6 of the plaint and he further stated that at the time of those deposits he was not aware of the notification dated 24-11-1951.
10. The principal question in this suit is whether the consignments were liable to duty at 8 annas per pound. The rate of 8 annas per pound was prevalent prior to 24-11-1931. On 24-11-1951 by notification the duty on mustard oil became 3 annas per pound.
11. Under Section 9 of the Land Customs Act the provisions of the Sea Customs Act specified in the schedule to the Land Customs Act together with all notification, orders, rules, or forms issued made or prescribed thereunder, shall, so far as they are applicable, apply for the purpose of the levy of duties of Land Customs under the Land Customs Act in like manner as they apply tor the purpose of levy of duties of customs on goods imported or exported by Sea.
12. Chapter V of the Sea Customs Act relates to levy of and exemption from customs duties. Chapter V of the Sea Customs Act contains Ss. 20 to 41 inclusive. Sections 21, 23, 25, 26, 29 to 36, 37 (except the proviso), 38 to 40 of the Sea Customs Act are made applicable to Land Customs Act for the purpose of the levy of duties of land customs. Section 38 of the Sea Customs Act enacts that the rate of duty and tariff and valuation, if any, applicable to any goods exported shall be the rate and valuation in force when a shipping bill of such goods is delivered under Section 137 of the Sea Customs Act, There are two provisos to Section 38 of the Sea Customs Act. The second proviso was inserted by the Sea Customs and the Central Excises and Sale Amendment Act, 1951. Counsel for the plaintiff did not place any reliance on the second proviso to Section 38 of the Sea Customs Act. Some reference was made to the first proviso to Section 38 of the Sea Customs Act and I shall deal with it later on.
13. Under Section 9 (2) (a) of the Land Customs Act references to bills of entry and shipping bills shall be deemed to be references respectively to applications for permits to import and applications for permits to export such as are referred to in Section 5 of the Land Customs Act. Under Section 5 of the Land Customs Act every person desiring to pass any goods whether dutiable goods or not by land out ot or into any foreign territory shall apply in writing, in such form as the Chief Customs Authority by way of notification in the Official Gazette prescribe, for a permit for the passage thereof, to the Land Customs Officer-in-charge of a Land Customs Station established in a land customs area adjoining the foreign frontier across which the goods are to pass. When the duty on such goods has been paid or when the goods have been found by the Land Customs Officer to be free of duty the Land Customs Officer shall grant a permit certifying that the duty has been paid on such goods or that the goods are j free of duty as the case may be. In my opinion it is beyond any doubt that in cases of export by land the rate of duty applicable to any goods shall be the rate and valuation in force when the application for permits to export is made. In the present case it is admitted by the plaintiff in the plaint that the applications for export were made on 22-11-1951. The applications are marked Ex. B. There is a column described in the application for declaration by the exporter. In that column there has to be first a declaration that the particulars are true. Secondly, there has to be signature with full name and address of the exporter or his agent. Thirdly, there is column for date. In all the three applications there is the signature of the Land Customs Clearing Agent and though the column of date is not filled up there is no dispute as to date of the application. The assessment order in all the three applications is made on 22-11-1951 as will appear from the signature of the Land Customs Officer in the column of assessment order and there is also at the top a seal of the Central Export Pak Land Customs dated 22-11-1951.
14. As I have already stated it is only when duty on goods has been paid that the Land Customs Officer grants a permit certifying that duty has been paid on such goods. The payment of duty was complete on 22-11-1951. Such duty was calculated under Section 9 (2) (a) of the Land Customs Act read with Section 38 of the Sea Customs Act, namely, the duty in force when the application for permit to export was made.
15. Mr. Basu, Counsel for the plaintiff con-tended that the duty on export was leviable under the Tariff Act. Section 5 of the Indian Taritt Act enacts that where a customs duty at any rate prescribed by or under the Tariff Act or any other law for the time being in force is leviable on any article when imported into or on any article when exported from a port in India, the Central Government may by notification in the official gazette direct that a duty of customs at the like rate shall be leviable on any such article when imported or exported as the case may be by land from or to any territory outside India. Counsel for the plaintiff contended that since the word 'exported' was used in the Taritt Act the authorities could levy only such rate of duty as was prevalent at the actual time of export.
16. Counsel for the plaintiff relied on the decision of Attorney General v. Pougett reported in (1816) 2 Price 381: (146 ER 130) and Muller v. Baldwin 9 QB 457 for ascertainment of the meaning of the word 'export' as actually carrying out the goods from the port. It the question in the present case rested only on the Taritt Act there world have been much force in the plaintiff's contention. The levy ot duties is regulated by the Land Customs Act and certain provisions of the Sea Customs Act which are incorporated in the Land Customs Act. Under Section 5 of the Tariff Act it is for the Central Government to direct by notification that customs duty shall be leviable when imported or exported by land from or to any foreign territory. The effect of such a notification under the Tariff Act is to impose duties on import or export by land. The levy of duties and the rate of duty applicable to any goods exported are matters dealt with in Chapter V of the Sea Customs Act read with the Land Customs Act. In the face of clear statutory enactment in Section 38 of the Sea Customs Act that the rate of duty shall be the rate and valuation in force when the application for permit to export goods is made, I am of opinion that it is impossible to hold that the rate of duty will be the rate prevalent at the time of factual export of the goods or actual carrying out of the goods. Even in the case of export ot goods by ship the rate of duty is the rate in force when a shipping bill is delivered. To suggest that the rate of duty shall be the rate prevalent at the time of actual carrying out of the goods is, in my opinion to supply new words into the statute and also to render Section 38 of the Sea Customs Act nugatory.
17. Counsel for the plaintiff contended that the Tariff Act being later than either the Sea Customs Act or the Land Customs Act was to prevail as the charging statute. The Tariff Act merely era-powers the imposition of duty. The machinery for levy and collection of duty is to be found in the Sea Customs Act and the Land Customs Act. In the present case the notification dated 24-11-1951 is under Section 23 ot the Sea Customs Act which confers power on the Central Government to exempt any goods imported into or exported from India from the whole or any part of the customs duty leviable on such goods. The point of time at which the goods are imparted or exported for the purpose of levy of duties is regulated by the Sea Customs Act and the Customs Act. I have already indicated that the date of application for permit to export is the date which will be treated as the date for levy of duties. It appears from Ext. B to which I have already referred, that export was permitted in one case on 27 November and 29 November in two other cases. The permit was granted after duty had been paid. Duty was assessed, as I have already stated, On 22 November and was paid on 29 November in two cases and on 26 November in another case,
18. In the first proviso to Section 38 of the Sea Customs Act where shipment of goods is permitted without a shipping bill or in anticipation of the delivery of the suippmg bill, the rate of duty and tariff valuation, it any applicable shall be the rate and valuation in force at the time when shipment of the goods commences. This proviso is, in my opinion, not applicable to cases of export by land because under Section 5 of the Land Customs Act the Land Customs Officer is competent to grant a permit only when duty on such goods has been paid. In other words there cannot be under the Land Customs Act grant of permit without submission of an application for permission to export as also payment ot duty on goods sought to be exported. Secondly, it is, in my opinion, impracticable to draw the analogy ot shipment of goods to cases of export or goods by land. Under Section 61 of the Sea Customs Act no vessel shall take on board any part of her export cargo until a written application tor entry of such vessel outwards subscribed by the Master of such vessel has made to the Customs Collector, or before an 'order has been given thereon by such Officer lor such entry. Every application made under that section shall specify the name, tonnage, national character of the vessel, the name of the Master and the name of every place for which the cargo is to be shipped. Under Section 62 of the Sea Customs Act no vessel whether laden or in ballast shall depart from any customs port until a port clearance has been granted by the Customs Officer or other Officer entitled to grant the same. Even in cases of export by sea the time factor for determination of the rate of duty and tariff valuation is either when the shipping bill is delivered or when shipment of the goods commences. In cases of export by land Sections 61 and 62 of the Sea Customs Act are inapplicable inasmuch as the Customs Officers have no control over the departure of any train from land customs area. It' goods are allowed to be boarded into a train for export, goods will have already passed the land customs area and they will already have been exported and it will thereafter be beyond the authority of the Land Customs Officer to charge any duties. It is precisely to guard against such eventualities that Section 5 of the Land Customs Act has been designed as paying the duty on goods before a permit to export the same can be granted and Sections 61 and 62 of the Sea Customs Act are not Incorporated as a part of the Land Customs Act.
19. In the result I am of opinion that the consignments were liable to duty at 8 annas per pound inasmuch as the application for permit to export was made prior to 24 November 1951 and the rate of duty applicable is the rate prevalent on the date of the application.
20. Mr. Mukherjea counsel on behalf of the defendants wanted to raise an issue as to limitation. In the written statement no such plea was taken. It is true that the question of limitation is allowed to be raised as an issue even though it is not pleaded. The suit is framed for money had and received. I am of opinion that no question of limitation arises in this case.
21. It may be unfortunate as for as the plaintiff is concerned that the reduction in duty came within a few days after the plaintiff had applied to export the goods. Under the statute the plaintiff is without any remedy. In the result the suit is dismissed. I am of opinion that this is a case where the parties should pay and bear their own costs.