D.P.Kundu, J. - (1.) This appeal is arising out of judgment and order dated 23rd November, 1995 passed by S.B. Sinha, J. in Civil Order No. 8581 (W) of 1994.
(2.) M/s. Tirupati Trading Corporation who instituted the writ proceeding being Civil Order No. 8581 (W) of 1994 claims to be a partnership firm registered with the registrar of firms. The petitioner claims that the partners of the petitioner are citizens of India and the petitioner is dealing in and carrying on business of Refuse for Joss Sticks. It is stated that the petitioner started business of export in February, 1994 and on account of liberalised policy, the petitioner started export of Refuse for Joss Sticks. It is claimed that one of the partners of the petitioner in his individual capacity, at the material time, was working as a local handling agent and signatory of M/s. India Sales International, Rajbi Road, Kanpur, Uttar Pradesh (hereinafter referred to as India Sales) for export of their goods from Calcutta Port and India Sales, at the material time, had been exporting machine finished sandalwood, knife handles and paper weights etc. to different consignees in Hong Kong, Jeddah and Dubai. It is claimed that job of the said partner of the petitioner, while working as handling agent and signatory of India Sales, was for handling the export of goods and he was paid lump sum charges per shipment which included release of their cargo from Railway/Transport and handing it over to the clearing agent, preparation of export documents relating to customs etc. and after shipment is effected sending all the documents to the principals i.e. India Sales. It is noted here that names or any other particular of the partners of the petitioner have not been disclosed either in the writ petition or in the supplementary affidavit filed on behalf of the petitioner. It is also noted that the main writ petition was supported by an affidavit affirmed by one Binod Agarwal who was the Tadbirkar of the petitioner and the supplementary affidavit filed on behalf of the petitioner was affirmed by one Tarapada Das who was the agent and employee of the petitioner. Therefore, none of the partners had filed any affidavit before this court is connection with the present writ proceeding. Total number of partners has also not been enclosed. No document has been produced before the court to substantiate that one of the parties of the petitioner in his individual capacity, at the relevant time, was working as a local handling agent and signatory of India Sales. Under these circumstances this court, in the present writ proceeding, cannot, either accept the statement or proceeding on the basis of the statement that one of the partners of the petitioner in his individual capacity, at the relevant time, was working as a local handling agent and signatory of India Sales. This aspect of the matter can be decided only on evidence by the appropriate authority under Customs Act, 1962. It is suffice to say that there is no material before this court on the basis of which the court can hold that one of the partners of the petitioner, at the material time, was working as a local handling agent and signatory of India Sales.
(3.) It has been stated in the writ petition that a consignment was to be exported by the petitioner to the consignee in Hong Kong under Invoice No. TTC/EXP/002/1994 dated 10.2.1994. The said consignment consisted of 200 gunny bags of Refuse for Joss Sticks and declared for shipping Bill No. EF-787 dated 14.2.1994. The Refuse for Joss Sticks is the raw material for Agarbati preparation in dust form which consist of khas grass, sandalwood waste after extracting and distillation of oil by steam process and Morepanki after extracting oil and distillation of oil and apart of soil. For the purpose of the export of goods, the petitioner purchased the Refuse for Joss Sticks from M/s. Arvind & Brothers, Makarand Nagar, Kannauj, District Farukhabad, Uttar Pradesh. It has been stated in writ petition that the goods were purchased after one of the partners of the petitioner personally inspected the sample. It is noted that here also no particular of the partner has been disclosed. It has been stated in the writ petition that the contract between the consignee and the petitioner was finalised over phone. The case of the petitioner is that the bags of Refuse for Joss Sticks were received at Kanpur Station as per order term Ex-Kanpur and then those bags were loaded in wagon. According to the petitioner these bags were cleared from Howrah Railway Station by employees of the petitioner after which the goods were kept in Warehouse in the account of clearing agent M/s. Shaikh and Pandit and their responsibility was for arrangement of further transport, loading and unloading, shipment, clearance, etc. The petitioner stated that the contents of the bags were not checked by the petitioner on arrival of the goods at Howrah. It is difficult to believe that the petitioner did not get the contents of the bags checked on arrival of the goods at Howrah. Ordinarily the purchaser checks up the contents and conditions of the materials when the materials reach the destination. The case of the petitioner is that one of the partners of the petitioner, whose name has not been disclosed, in his individual capacity was working as a local handling agent and signatory of India Sales for export of their goods from Calcutta Port and that India Sales had been exporting machine finished sandalwood, knife handles and paper weights etc. to different consignees in Hong Kong, Jeddah and Dubai. It is stated that the job of the said unnamed and unidentified partner of the petitioner, as handling agent and signatory of India Sales, was for handling the export of goods and he was paid lump sum charges per shipment which included release of their cargo from Railway/Transport and handing it over to the clearing agent, preparation of export documents relating to customs etc. and after shipment is effected sending all the documents to the principals. The petitioner further stated that India Sales received foreign buyers' order for export of 340 bags of machine finished knife handles and 200 bags of machine finished paper weight made of sandalwood and the petitioner obtained order for export of 200 bags of Refuse for Joss Sticks. The case of the petitioner is that 540 bags belonging to India Sales and 200 bags belonging to the petitioner in total 740 bags were sent to Calcutta by rail in one wagon from Kanpur. At this stage it is necessary to quote the following few lines from paragraph 7 of the writ petition. "The goods (540 bags) of India Sales International and 200 bags of M/s. Tirupati Trading Corporation were mixed up in the Wagon and reached to Calcutta." (Emphasis added) The petitioner stated that 540 bags of India Sales and 200 bags of the petitioner reached at Howrah Station and after clearing entry tax and sales tax at Howrah the said 740 bags were loaded in five trucks for sending to Warehouse. It has been stated in the writ petition as follows: "On the way one truck carrying 150 bags had been seized by the Sales Tax Authorities and it was ascertained from the driver that the said 150 bags belonging to M/s. India Sales International." (Emphasis added) When it is a positive case of the petitioner that the goods (540 bags) of India Sales and 200 bags of the petitioner were mixed up in the wagon and reached to Calcutta and when it is the definite case of the petitioner, as made out in paragraph 5 of the writ petition, that the bags were not checked by the petitioner on arrival of the goods at Howrah then it is not understood how from the driver it could be ascertained that the truck carrying 150 bags which have been seized by the Sales Tax Authorities belonged to India Sales. The very statement that it was ascertained from the driver that the said 150 bags belonged to India Sales indicates that the case of the petitioner that 540 bags of India Sales and 200 bags of the petitioner were mixed up in the wagon and that on the arrival of goods at Howrah the bags were not checked by the petitioner is not correct. It is also important to note here that the paragraphs 5 and 7 of the writ petition have been verified as information derived from the records. No such records has been produced before the court to substantiate the statements made in paragraphs 5 and 7 of the writ petition. Under these circumstances it is difficult to believe the case of the petitioner. Moreover these aspects of the matter can be properly decided on evidence by the competent authority under the Customs Act, 1962. Court while exercising powers of judicial review under Article 226 cannot assume or usurp the functions of the competent authorities under the Customs Act, 1962.;