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TMI Blog1971 (11) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... to be completed within three months from the date of opening of the letter of credit. That letter of credit was duly opened. Thereafter the appellant obtained an export licence from the Government of Nepal for exporting masur dal in accordance with the agreement entered into by him with the Cairo firm. A copy of this licence was sent to the Collector of Customs, Calcutta and the Border Customs Posts at Nepalganj and at Birganj. The dal in question was sent to Calcutta either through Rupadiah from Nepalganj or through Raxaul from Birganj. The concerned invoices were verified and certified 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant that re-exporting of any dal exported from India to Nepal, does not amount to a contravention of the treaty referred to earlier. In the result he allowed the writ petition of the appellant and made the rule issued absolute. He quashed the order passed by the adjudicating officer by issuing a writ of certiorari and further issued a writ in the nature of mandamus directing the respondent to forthwith release 250 M.T. masur dal to the appellant which was the subject matter of the impugned order of confiscation. 4.As against that order, the Customs authorities went up 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 conclus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tra, J. are unsustainable, we refrain from going to the larger question whether the contravention of the provisions of a treaty entered into between two High Contracting Parties can itself be made a ground for taking penal action against the contravener. 7.In order to establish that the dal in question was of Indian origin, the customs authorities examined three witnesses. All of them frankly conceded that it was not possible for them to say definitely that the dal in question was of Indian origin. They deposed that they were unable to distinguish between Indian dal and the 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 bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of mutual trade in goods originating in the two countries and shall to this end endeavor to make available to each other commodities which one country needs from the other. The Contracting parties shall further take care to avoid to the maximum extent practicable diversion of commercial traffic or deflection of trade." 9. This article deals with trade policy. It does not prohibit the re-exportation of goods imported by Nepal from India. We fail to see how this clause could afford a basis for coming to the conclusion that the treaty has prohibited the re-exportation of the 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia. It merely contemplates that if it becomes necessary - (1) to secure a balance in mutual payments; (2) to prevent the smuggling of their currencies from or to third countries; (3) to prevent the re-entry into its territory of goods in transit and (4) to prevent the re-export of goods exported to the territory of the other, the High Contracting Parties may take appropriate measures by mutual agreement. 12.The customs authorities have not placed any material before the court to show that the governments concerned have taken any measure for the purposes mentioned above. Hence the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot now take possession of the goods which were seized from him without paying the charges due to the Port Commissioners. We were given to understand that the charges due to the Port Commissioners amount to more than the value of the goods themselves. It is only fair and just that the customs authorities who are responsible for this situation should bear the burden; but in this writ petition we cannot give any relief in that regard. We can only leave the matter to the good sense of the customs authorities to take the appropriate steps and avoid possible further litigation. 15. In the result we allow this appeal in part and quash the order made by the adjudicating officer but we decline to grant the writ of mandamus asked for. Responden ..... X X X X Extracts X X X X X X X X Extracts X X X X
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