1. The facts in this case are shortly as follows:
The petitioner company owns and manages a Tea Estate known as the Atiabari Tea Estate, situated in the Alipurduar, district of Jalpaiguri. The petitioner grows tea which it sends to Calcutta for sale, both for export and for internal consumption, through auction-sales held by brokers in Calcutta. On diverse dates in July, 1953 the petitioner made over to the North Eastern Railway Administration at Garopara, 402 chests containing 42016 lbs. of black tea, for carriage and delivery to the petitioner at Calcutta, T. T. Shed. The intention thus was to send tea from one part of the Indian Union to another. The North Eastern Railway proposed to send the tea via Dhubrighat through the Agency of R. S. N. Co. Ltd. and I. G. N. and Ry. Co. Ltd., (the joint river companies) who were to carry them to Calcutta' by river, part of the route lying in Eastern Pakistan. As required by the Excise Department, the petitioner had to execute a bond for despatch of the tea through Eastern Pakistan. A copy of the bond is annexed to the petition and marked as Annexure 'A'. The Bond states that it was being executed in consideration of the permission granted for transporting the goods by Steamer and Rail in transit through Pakistan territory. The petitioner, by that bond, guaranteed the production and delivery within two months from the date of the despatch, a certificate or certificates from the consignee, of the receipt of the goods. The petitioner further undertook not to divert any goods en route, 'and in' the event of any short-delivery at destination, to pay the duty or cess together with any penalty that may be adjudicated by the Customs,. Calcutta under the Land Customs Act. It appears that the consignment was put on board the steamer--S. S. Pagan--for carriage to Calcutta. On 22-7-1953 the steamer carrying the consignment met with a serious accident near Jagannathganj in Eastern Pakistan, as a result of which the Steamer sank with its entire cargo on board including the consignment in question. In other words, the goods, during transit by river, were lost totally by being submerged in the river. The petitioner duly informed the Collector of Central Excise, Calcutta by a letter, dated 1-10-1953, of the said loss. The Superintendent of Central Excise, Alipurduar Circle asked for particulars and documents relating to the loss, and according to the petitioner Company such documents were furnished. On 19-4-54, the Inspector of Central Excise, Atiabari Range, demanded payment by the petitioner of the sum of Rs. 7,878/- as export duty and Rs. 840/- as cess. The petitionerfiled an objection stating that the goods being lost, no export duty or cess was payable, but the said objection was rejected and the respondents are proceeding to realise the alleged dues for export duty and cess from the petitioner. This has given rise to this application. In this application, the petitioner asks for an appropriate writ directing the respondents to forbear from giving effect to the notice of demand, dated 19-4-1954 and 8-6-1955 together with one issued on 2-7-1955 and to generally not enforce realisation of the said sums demanded as export duty and cess.
2. Before I proceed further, it will be necessary to mention the fact that the petitioner has filed a suit against the Union of India and the India General Navigation and Ry. Co. as well as the River Steam Navigation Co. Ltd. for damages and compensation in respect of the goods lost as aforesaid, valued at Rs. 78,857/10/10. This, has been numbered as Money Suit No. 3 of 1954 in the Court of the Subordinate Judge, Jalpaiguri. Copies of the pleadings thereof are annexed to the affidavit in reply filed by Mahendra Nath Ghatak, dated 2-9-1956. In the plaint, it is alleged that the consignments were delivered for transit to the North Eastern Railway, but the consignments have not been delivered and the petitioner company, the plaintiff therein, was entitled to damages and compensation. In answer, the Union of India has filed a written statement in which it states as follows:
'That the consignments in suit were made over by the Railway to the Steamer Companies correctly but the steamer 'Pagan' carrying the consignments had met with a serious accident on 22-7-1953 near Jagannathganj, East Pakistan, as a result of which the steamer sank with loss of cargo on board which included the consignments in suit. For such accidental loss, this defendant cannot, in any way, be held liable.'
3. This has been affirmed by the District Traffic Superintendent, Claims, North Eastern Railway Calcutta, for and on behalf of the Union of India, as true to the best of information received by the deponent and believed by him to be true. The India General Navigation and Ry. Co. has also filed a written statement and the relevant part thereof runs as follows:
'These defendants admit that the consignments of tea booked from Garopara to' T. T. Sheds, Calcutta via Dhubrighat .................... were notdelivered to the consignee, as these were lost along with other consignments of tea due to the sinking of the S. S. Pagan carrying the same as a result of an accident en route, over which these defendants or their servants or agents had no control. In the circumstances, these defendants deny that due to the wilful default, negligence and criminal act and misconduct on the part of any of the defendants or their agents or servants, the said consignments have not been delivered to the consignee. As a matter of fact, the consignee was in due course apprised of the accident and of the circumstances leading to same as recorded in the protest of the Master of the Pagan, and the allegations as to wilful default etc. are baseless ............'
4. In this application it has been stated, on behalf of the respondents, that the petitioners had failed to deliver the goods to the consignee, and under the Bond, export duty and cess has become liable to be paid. It is further said that no satisfactory evidence was placed before the authorities about the loss. This is not strictly accurate. What the authorities appeared to have been insisting upon was a certificate by the Steamer Company about the loss. In view of the litigation pending it is not possible for the petitioner to procure such a certificate. But we have now the admission by the Union of India in its written statement filed in the suit above mentioned, that the loss had actually occurred. I am unable to accept the argument that in the facts and circumstances of this case the petitioner was liable to pay either export duty or cess. In order to amount to 'export', goods have to be transported from the territories of the Indian Union, to a territory outside its frontiers. In this case, no goods were intended to be sent from the Indian Union to another country outside. The intention was to send goods from one part of the Indian Union to another, but because part of the route lay through a foreign country, the goods travelled in transit beyond the country of origin, but were destined eventually to return to it. As is well known, in order to amount to export there must be an 'animus' or intention to export. The authorities are perfectly justified in taking every precaution to prevent diversion of goods by way of export, under the pretence of sending them to another part of the Union. If there was the slightest foundation for saying that the goods had, or could have been diverted, then the court would not have interfered. It is easy to see that by so interfering a premium would be imposed upon fraudulent trafficking, thereby depriving the State of its Revenue. In the present case, however, the facts are almost undisputed & indisputable. The Union of India has solemnly admitted the loss of the goods, in certain legal proceedings. I do not think that it is any longer open to the respondents to say that there could possibly be any doubt about the factum of the loss or any foundation for a suspicion that the goods were diverted into a foreign country. Starting from the position that the loss actually occurred and that the goods which had been sent from one part of India to another, through a foreign country, were accidentally and totally lost, no foundation has been made for saying that under such circumstances the consignor would be liable to pay export duty or cess. In any event, no provision of law has been drawn to my attention to that effect. The provision of the guarantee Bond obviously means that the short-delivery should be intentional and not accidental. If nothing had happened and there was a short-delivery, the presumption would be that the amount short-delivered had been diverted to a foreign destination. As I have stated above, the matter depends wholly on the facts of each case, and as matters stand herein, there can be no controversy oh facts. In my opinion, the respondents are wrongly seeking to make the petitioner Company liable for export duty or cess, and there is no foundation in law for such an imposition.
5. The Rule must, therefore, be made absolute and there must be a writ in the nature ot mandamus directing the respondents to forbear from giving effect to the notice mentioned in the petition and/or from realising the export duty or cess mentioned above from the petitioner.
6. There will be no order as to costs. (The rest of the judgment with regard to Civil Revision Cases Nos. 2935 and 2936 of 1955 is not material for the purpose of reporting.)