Holding

The burden of proving that the transporter delivered the goods at Benapole Customs lies on the transporter, which failed to discharge it, so the award in favor of the exporter is upheld.

Summary

The exporter, Ganesh PolytEx Ltd., alleged that Transport Corporation of India Ltd. failed to deliver four consignments of yarn fabric to Benapole Customs in Bangladesh, seeking compensation under the Consumer Protection Act. The National Consumer Disputes Redressal Commission ordered the transporter to pay the claimed amount with interest. On appeal, the Supreme Court examined whether the transporter had discharged its legal duty to deliver the goods, focusing on the statutory requirements under the Customs Act for a Bill of Export and Export Report. The Court held that the burden of proving delivery rested on the transporter, which did not produce the requisite documents or admissible evidence of delivery. Consequently, the Court upheld the Commission’s award and dismissed the appeal.

Issues considered

The legal burden of proof for a transporter to demonstrate delivery of exported goods at a foreign customs station.
Whether the Bill of Export and Export Report are essential proof of export under the Customs Act, 1962.
The admissibility of a foreign customs letter under Section 78 of the Evidence Act, 1872.
Whether a claim for duty drawback under Sections 74/75 of the Customs Act implies successful delivery of goods.
The correctness of the National Consumer Disputes Redressal Commission's award under the Consumer Protection Act, 1986.

Legislation cited

Consumer Protection Act, 1986s. 21(a)(i)
Customs Act, 1962s. 40, s. 41, s. 50, s. 51, s. 74, s. 75
Customs, Central Excise, Duty and Service Tax Drawback Rules, 1995s. 13
Export Report (Form) Regulations, 1976
Indian Evidence Act, 1872s. 78
Shipping Bill and Bill of Export (Form) Regulations, 1991

Subjects

consumer protectionexportcustoms lawburden of proofduty drawbacktransport contractbill of exportexport reportevidence actprivate international law

Judgment

A
[2014] 11 S.C.R. 98

M/S TRANSPORT CORPORATION OF INDIA LTD.
•
v.
. M/S GANESH POLYTEX LTD.
(Civil Appeal No. 1427 of 2007)
NOVEMBER 05, 2014
B
[J. CHELAMESWAR AND A.K. SIKRI, J,1.]

Consumer Protection Act, 1986 - s. 21(a)(i) - Complaint
under - By the exporter of goods - Against the transporter -
C Complaint allowed by National Commission directing the
transporter to make payment to the exporter with interest -
Held: Since the transporter admitted entrustment of goods by
the exporter, the burden to prove that it (transporter)
satisfactorily discharged his legal obligation to deliver the
D goods, is on the transporter, which burden, it failed to
discharge - Hence, National Commission rightly allowed the
claim of the exporter - Customs Act, 1962 - ss. 41, 74 and
75 - Shipping Bill and Bill of Export (Form) Regulations,
1991 - Reg. 3 - Export Report (Form) Regulations, 1976 -
E Reg. 4 - Evidence Act, 1872 - s. 78 - Customs, Central
Excise, Duty and Service Tax Drawback Rules, 1995.

Dismissing the appeal, the Court

HELD: 1. Import and export of goods into or out of
F India is regulated by the Customs Act, 1962 and the Rules
and Regulations made thereunder. The appellant, who
claims to have exported 4 of the 5 consignments handed
over to it by the respondent, could not have loaded the
goods at Petrapole Customs station without having
G obtained a BILL OF EXPORT duly passed by the proper
officer and the person-in-charge of the conveyance
owned by the appellant could not have either loaded the
goods in the vehicle or departed from Petrapole Customs

H 98
• TRANSPORT CORPORATION OF INDIA LTD. v. 99
GANESH POLYTEX LTD.
station without delivering to the proper officer an A
EXPORT REPORT in the prescribed form contemplated
under Section 41 of the Act. The best proof of the case
of the appellant that it had in fact transported the goods
in dispute beyond the Petrapole Customs station and out
of the customs frontier of India would have be·en to B
produce the BILL OF EXPORT and EXPORT REPORT
pertaining to the four consignments in dispute. (Paras 29,
38 and 39] (110-H; 111-A; 113-E-F; 114-A-C]

2. Unloading of imported goods at any customs
station in India is also regulated by the provisions of the C
Customs Act, 1962. The appellant did not plead as to
what is the procedure prescribed under the law of
Bangladesh for the unloading of the imported goods at
its Customs Stations? Nor did the appellant give the
details of the dates of the actual delivery of each of the 4 D
consignments at Bengapole. It is a settled principle of
private international law that foreign law is always a
question of fact which is required to be pleaded and
proved by the party whose rights or obligations flow from
such foreign law. There is no pleading or proof in this E
regard in the instant case. [Paras 41 and 42] (115-A-D]

3. The defence of the appellant based on the letter
dated 10.04.2002 that the appellant had delivered four
consignments entrusted to it by the respondent at the F
Benapole Customs Station, Bangladesh cannot be
accepted. The document (letter dated 11.04.2002)
purports to be the internal correspondence between the
two officers of the Customs department of Bangladesh,
purportedly with a copy marked to the appellant. There G
is no pleading explaining the occasion for such a
correspondence. The proof of public documents is
required to be made in the manner specified under
Section 78 of the Evidence Act. There is nothing on
record to establish that the abovementioned letter has
H
100 SUPREME COURT REPORTS [2014] 11 S.C.R.

A been duly proved in accordance with Section 78 of the
•
Evidence Act. [Paras 45, 46 and 47] [117-E; 118-A-B,G-H]

4. In the present case, it is not clear from the
pleadings of the appellant whether the respondent
claimed a.drawback either under Section 74 o.r under
8
Section 75 of the Customs Act. In either case, the right
to a drawback accrues to the exporter once the exporter
makes an entry for export of the goods under Section 50
of the Act and on the making of an order by the proper
officer under Section 51 permitting clearance and loading
C of the goods. A duty drawback does not necessarily lead
to the inference that the appellant had duly delivered the
goods in question at Benapole Customs station. [Paras
51 and 52] [121-B, C, G, H]

D 5. In view of the fact that the appellant admitted the
entrustment of goods by the respondent to the appellant
for transportation to Benapole (Bangladesh), the burden
to prove that the appellant satisfactorily discharged his
legal obligation to deliver the goods at Benapole
E (Bangladesh) in accordance with law is on the appellant
which burden the appellant failed to discharge. Therefore,
the National Commission rightly allowed the claim of the
respondent. [Para 54] [122-C-D]

CIVIL APPELLATE JURISDICTION : Civil Appeal No.
F 1427 of 2007.

From the Judgment & Order dated 20.12.2006 of the
National Consumer Disputes Redressal Commission, New
Delhi in Original Petition No. 341 of 1993.
G
Jayant Bhushan, Madhvi Diwan, Rishi Maheshwari, P.S.
Sudheer for the Appellant.

A.N. Haksar, Rajeev K. Virmani, Rashmi Virmani,
Sandeep Narain, Mukta Dutta, Jyoti Prakash, Narain & Co. for
H the Respondent.
• TRANSPORT CORPORATION OF INDIA LTD. v.
GANESH POLYTEX LTD.
The Judgment of the Court was delivered by
. 101

A

CHELAMESWAR, J. 1. This is an appeal under Section
23 of the Consumer Protection Act, 1986 against the order
dated 20th December, 2006 of the National Consumer
Disputes Redressal Commission (for short "the National B
Commission") in Original Petition No. 341 of 1993. The
opposite party/respondent in the above-mentioned original
petition is the appellant herein. The sole respondent herein was
the complainant before the National Commission.

2. By the impugned Order, the National Commission C
allowed a complaint filed by the respondent herein and directed
the appellant herein to pay an amount of Rs. 29,74,321.45 with
interest@ 12 per cent per annum from the date of the filing of
the complaint till the date of realization apart from the cost
quantified at Rs.25,000/-. D

3. The substance of the complaint before the National
Commission is as follows:-

4. Both the parties to the complaint are public companies E
under the Companies Act. The respondent is engaged in the
business of manufacturing and selling of yarn and export of
fabric of different specifications, whereas the appellant is
engaged in the business of transporting goods from one place
to the other for consideration.
F
5. In the year 1992, the respondent received an indent for
export of 100 per cent cotton yarn fabric specified therein, the
details of which are not necessary for the purpose of this
judgment. The said indent was placed by one Mis. Aleef
Enterprises (Trading), Dhaka calling upon the respondent to G
export the goods specified in the indent to Mis. Azim Garments
Ltd. in Dhaka, Bangladesh.

6. According to the complaint, the respondent was
required to dispatch the entitled goods and "negotiate various
H
A
102 SUPREME COURT REPORTS

documents including invoice, consignment copy of the goods
[2014] 11 S.C.R.
•
received and consignment note bill of exchange etc." through
M/s. lslami Bank Bangladesh Ltd., allegedly, the banker of Ml
s. Azim Garments Ltd., Dhaka 1 .

7. Jhe respondent averred in the complain! that it had
B
agreed to send the various documents to be negotiated with
the said lslami Bank and acceptance by the respondent's
banker i.e. the American Express Bank Ltd. It is further stated
in the complaint that the said lslami Bank was entitled to take
delivery of the goods or endorse the consignee copy of the
c goods receipt/consignment note in favour of Mis Azim
Garments Ltd. 2

8. The respondent entrusted five consignments of goods
to the appellant on various dates, the details of which are as
D follows:-
Invoice Date Qty in Amount US$ Consignment Date
No. Mtrs. Note No.

EXPi2 28.10.92 13982 18176.60 A08465 28.10.92
E
EXPi3 05.11.92 25109 32641.70 A 08565 05.11.92

EXPi4 14.12.92 12208 15870.40 A 08658 16.11.92

1. Para 3 of the Complaint: In terms of the said indent, the complainant was
F required to dispatch the quantities of the said goods and to negotiate various
documents including the invoice, consignee copy of the goods receipU
consignmenLnote, bill of exchange etc., and other documents of dispatch
through Mis. lslami Bank Bangladesh Ltd., the bank of the said Mis. A2im
Garments Ltd.
2. Para 3 of the Complaint: The said documents were agreed to be sent to
G the said lslami Bank Bangladesh Ltd., for negotiation and acceptance by
American Express Bank ltd., the bank of the complainant. The said Islamic
Bank Bangladesh Ltd. upon acceptance for payment of the said documents
including the bill of exchange for the price of the goods consigned, was
entitled to either take delivery of the consignment of the said goods itself
or endorse the consignee copy of the goods receipUconsignment note in
favour of Mis .Azim Garments Ltd.
H
• TRANSPORT CORPORATION OF INDIA LTD. v.
GANESH POLYTEX LTD. [J. CHELAMESWAR, J.)
EXP/5 30.01 93 16188 21044.60 A 98738
103

29.12.9• A
EXP/6 25.02.93 5447 7081.10 A 11351 15.02.9:
94814.20

- Para 4 of the complaint
B
9. Under the consignment note, the said goods were
required to be transported from Ahmedabad to Benapole in
Bangladesh. The CONSIGNEE COPIES of the consignment
notes of each of the five consignments mentioned above were
handed over to the respondent. It is admitted in the complaint C
that the goods which are the subject matter of the above-
mentioned five consignments are required to be delivered upon
the production of the consignee's copy of the respective
consignment notes. 3

10. According to the respondent, all the relevant documents D
including the CONSIGNEE COPIES of the consignment notes
were duly communicated by the respondent through its banker
to the lslami Bank Bangladesh Ltd. It is specifically averred in
the complaint that the said transaction was originally covered
by letter of credit opened by the said lslami Bank but the said E
letter of credit had expired. Therefore, the documents
mentioned above were sent to the said banker on collection
basis. 4
3. Para 4 of the Complaint: The complainant from time to time entrusted the
Respondent with various quantities of the said goods for transportation
F
from Ahmedabad to Benapole in Bangladesh. The Respondent after
colleting the freight, issued its consignment notes. The consignee copies
of the respective consignment notes were handed over to the complainant
and the goods covered by each consignment note were to be delivered
and could be taken delivery of upon production of the consignee copy of
the respective consignment note only and not otherwise.
4. Para 5 of the Complaint: All the documents including, inter-alia, the invoice, G
the consignee copies of the consignment notes and the bills of exchange,
were duly sent by the Complainant through American Express Bank Ltd. to
lslami Bank Bangladesh Ltd. for acceptance for payment. The said
documents, although drawn under a letter of credit opened by the said
lslami Bank Bangladesh Ltd., were sent on collection basis as the said
Letter of Credit had expired
H
A
104 SUPREME COURT REPORTS [2014] 11 S.C.R.

11. It appears fr,om the complaint that the lslami Bank
Bangladesh, though received all the documents sent by the
•
respondent, did not honour the same and made no payment
for a long time. In the said circumstances, the respondent
through its banker recalled all the documents "in order to re-
8 import the goods back to India". Admittedly, the said documents
were returned unpaid by the lslami Bank Bangladesh to the
complainant's banker. 5

12. Upon the return of the original documents by the lslami
Bank, the respondent herein, by its letter dated 12th July, 1993,
C called upon the appellant to "rebook all the five consignments:
for transportation to New Delhi and deliver the same to the
complainant at New Delhi". (Para 10 of the Complaint)) In
response to the said letter, the appellant herein, by its letter
dated 22nd July, 1993, assured the respondent that all the five
D consignments would be rebooked for delivery at New Delhi. The
appellant further called upon the respondent "to surrender the
original consignee copies alongwith the invoice copies and pay
one side freight and octroi at its Ahmedabad dffice for
rebooking".
E
13. In reply to the letter dated 22nd July, 1993 of the
appellant, the respondent, by its letter dated 31st July, 1993,
called upon the appellant to confirm inter a/ia "thal the goods
covered under the said consignment note were available with
F the respondent and the location of the said goods". The
appellant replied by its letter dated 16th August, 1993 without
giving any information demanded by the respondent but only
gave assurance that the goods would be delivered within fifteen
to twenty days "after the receipt of the original consignee
G copies".
14. On 28th August, 1993, the respondent sent another
5. Para 8 of the Complaint: Thereafter, the said documents of the aforesaid
five consignments were duly returned unpaid by the said lslami Bank
Bangladesh Ltd. to the Complainant's bank under cover of their letter dated
H 16.6.93.
• TRANSPORT CORPORATION OF INDIA LTD. v. 105
GANESH POLYTEX LTD. [J. CHELAMESWAR, J.]
letter seeking unequivocal answers to the various enquiries A
made by the respondent in its earlier letter dated 22nd July,
1993.

15. In reply, the appellant, by its letter dated 11th
September, 1993, confirmed that all the aforesaid 8
consignments were lying at the godown in safe and sound
condition and further confirmed that upon receipt of the original
consignee copies, the said goods would be rebooked to New
Delhi. The relevant portion reads as follows:
"Sub.: Ch.No.A-08465 dated 28.10.1992 c
Ch.No.A-08565 dated 05.11.1992
Ch.No.A-08658 dated 16.11.1992
Ch.No.A-098738 dated 29.12.1992
A-11351 dated 15.02.1993
All Ex. Ahmedabad to Benapole D
We have received your letter no.RKV/M-889 dated 28th
August, 1993 for rebooking of above consignments.

We have already given you two letters for advising your
clients to deposit the original consignee copy and one side E
freight and other dues then only we will rebook the above
consignements. But, you are asking for the confirmation
referred in your earlier letter in paras 1(a) and (b).

Please note that the above consignment is lying at our
godown in safe & sound condition. When your client will F
send the DID for our dues with original consignee copy to
our Ahmedabad or Calcutta office then our concerned
office will advice to Benapole to rebook the material to
Delhi as per your advice. You are giving unnecessary
correspondence and due to this long delay the demurrage G
is going on higher side day by day@ 3 paise per kg. per
day.

We hope, you understood all the points and take
necessary action immediately." H
A
106 SUPREME COURT REPORTS [2014] 11 S.C.R.

16. The said letter was followed by another letter of the
•
appellant dated 29th September, 1993, the relevant portion
reads as follows:
"Sub.: Ch.No.A-08465 dated 28.10.1992
Ch.No.A-08565 dated 05.11.1992
B Ch'.No.A-08658 dated 16.11.1992
Ch.No.A-098738 dated 29.12.1992
A-11351 dated 15.02.1993
All Ex. Ahmedabad to Benapole
This has reference to our earlier letter no.SBD/OPN/INMI
c 3569193 dated 11th September, 1993 regarding above
consignments.

As per the reply received from our Calcutta offir.e, first four
consignments have already been exported and the
D documents were sent to the party directly.

The last consignment i.e. Ch.No.A-11351 is lying at our
Calcutta Godown. If you want to rebook this consignment
to Delhi, you please send the original consignee copy and
our dues by DID to our Ahmedabad or Calcutta Office
E
directly for their necessary action. On receipt of Consignee
copy and DID, our Calcutta office will rebook this
consignment to Delhi."

17. In the background of the abovementioned facts, the
F respondent herein filed a complaint under Section 21 (a)(i) of
the Consumer Protection Act, 1986 before the National
Commission in Original Petition No.341 of 1993 claiming
various amounts totaling to Rs.40,98, 164.04 along with
pendente-lite interest and future interest@ 21 % per annum on
G Rs.34,74,321.45 along with costs.

18. In response to the said complaint, the appellant herein
filed its written statement wherein it admitted the fact that five
consignments of goods under five distinct consignment notes
H (as specified in the complaint) were entrusted to the appellant
• TRANSPORT CORPORATION OF INDIA LTD. v.
GANESH POLYTEX LTD. [J. CHELAMESWAR, J.]
for being transported from Ahmedabad to Benapole
107

A
·(Bangladesh). According to the appellant, of the
abovementioned five consignments, four consignments were
infact delivered. The relevant portion of the appellant's written
statement reads as follows:
B
"The opposite party duly cleared the consignments at lndo-
Bangladesh border from Indian Customs and as per
export procedure duly handed over the same to the
Bangladesh Custom Officer which duly acknowledged the
receipts of the said 4 consignments."
c
19. It is further the case of the appellant that the fifth
consignment was not exported to Bangladesh in view of the fact
that the respondent herein had instructed the appellant to
rebook the same to Delhi. 6
D
20. It is the case of the appellant that as per the export
procedure, the goods (which are the subject matter of dispute)
were required to be unloaded and delivered at the Benapole
Customs frontier of Bangladesh after crossing the Indian border
at Petrapole. The relevant portion of the written statement, at
para 4, reads as follows: E

"The subject consignments were meant for carriage by
lorry transport from Ahmedabad/Odhav to Benapole
(Bangladesh) and as per export procedure and or as
customary said goods were to be unloaded and delivered F
after crossing India border at Petrapole into the warehouse
of Bangladesh customs at Benapole. The importer
consignee was to take delivery of the said goods after

6. The goods covered by the consignment note No.A-11351 could not be G
exported to Bangladesh as in the meantime the opposite party having
received instructions to rebook the same ...... The same consignment is
lying in the godown of the opposite party at Calcutta entirely at the risk and
responsibility of the complainant and incurring day to day demurrage
charges. The opposite party was and still is ready and willing to deliver
the goods covered by the consignment note No.A-11351. H
•

A
108 SUPREME COURT REPORTS

paying the customs duties after complying with the
[2014] 11 S.C.R. •
formalities as per rules of the Bangladesh Customs Import
and on submission of relevant documents to Bangladesh
Customs Authorities at Benapole. The opposite party's
obligation was to transport the said goods by their lorry
B ano to deliver the same to the Benapole ·Bangladesh
Custom Warehouse as per prevalent procedure of
exporting the materials to beanpole (Bangladesh) from
India. The opposite party duly transported the said four
consignments and delivered the same at Benapole."

C 21. Coming to the letter dated 11.9.1993 of the appellant
whereunder (according to the respondent) the appellant agreed
to rebook the five disputed consignments to Delhi, it is the
defence7 of the appellant that (a) the said letter only explained
the procedure for rebooking of the consignments, and (b) the
D admission regarding the custody of the five consignments was
a mistake of fact in view of the communication gap between
the ai;;.iellant's headquarter and its various branch offices.
Within a short period after delivering the letter the appellant
realized its mistake and explained its position by subsequent
E letter dated 29.9.1993 (the contents of which have already been
extractea earlier).

22. It is further the defence of the appellant that once the
goods crossed Indian customs frontier during the course of
F export of such goods, only the exoorter can bring back the
goods by following the procedure under the law•.

7. The opposite party states that by its letter dated 22.7.93 it never assured to
rebook all the five consignments for delivery at Delhi to the complainant as
alleged. On the contrary, the opposite party by its letter dated 22.7.93
explained the procedure for rebooking of the consignments by the consignor
G concerned. Thereafter, on thorough enquiry from its concerned branch
offices the opposite party by its letter dated 29.9.93 duly informed the
complainant that the goods covered by the four consignment notes were
exported and delivered at the destination in terms of contract of carriage.
8. The complainant is also well aware of the fact that there is no 'Trade treaty'
between India and Bangladesh for rebooking of the consignment by the
H transporter against the consignment notes issued in India. Only the
• TRANSPORT CORPORATION OF INDIA LTD. v. 109
GANESH POLYTEX LTD. [J. CHELAMESWAR, J.]
23. The appellant also took a defence that the respondent A
availed the duty drawn back credit und.er the Customs Act on
the strength of the fact that the goods in dispute had been
exported. Therefore, it is not open to the respondent to complain
that the appellant has either misappropriated the goods or
made a wrong delivery.• B
24. In support of its defence, the appellant relied upon three
sets of documents i.e. Annexures X, Y and Z, running into 8, 2
and 6 pages respectively. Annexure 'X' consists of copies of
four invoices and copies of four consignment notes covering
four consignments of goods in dispute.
c
25. The National Commission recorded a finding that the
copies of the invoices produced under Annexure 'X' by the
appellant herein and the copies of the invoices filed by the
complainant do not tally with each other and, therefore, the D
documents produced by the appellant herein are "bogus". 10

Exporter can through his Clearing Agent at Bangladesh re-import the
exported consignments according to 'back to India Bangladesh Customs E
procedure'. . .. After exporting the consignments to Bangladesh it is the
owner of goods who after completing all the formalities can clear the
consignments from Bangladesh Customs and it is only then the same
can be brought back to India. The opposite party as a carrier cannot of its
own bring back the exported consignments in its country under the Law.
9. The complainant being fully aware of the fact that the said 4 consignments F
were duly delivered at beanpole (Bangladesh) in terms of contract of
carriage duly applied for duty drawback as provided under Section 74/75
of Customs Act, 1962 which is export-oriented benefit given by the
Government of India.
10. Reading of two sets of invoices together would show that the number of
cartons, measurement of fabrics and dates as recorded in invoices at G
pages 61, 63, 65 and 67 are substantially different from the invo:ces at
pages 15, 18, 21 and 24 for which no satisfactory explanation has been
offered by the opposite party. Also considering the submission referred to
above advanced by Shri Virmani, the invoices filed by the opposite party
must be held to be bogus and they cannot be exhibited and read in
evidence.
A
110 SUPREME COURT REPORTS [2014] 11 S.C.R.

26. The National Commission also examined two letters
dated 08.04.2002 and 10.04.2002. These two letters were sent
•
by the Customs authorities of Petrapole, Kolkata and Benapole
(Bangladesh) respectively in response to the letters dated
14.03.2002 and 12.03.2002 respectively of the appellant. The
8 National Commission recorded a finding,· "therefore, neither
these two letters nor the endorsements and seals of Cargo
Officer alongwith signatures on said invoices or the statement
of Mahafuzur Rehman are of any help to the opposite party on
the controversy on hand". The Commission, therefore, allowed
c the complaint. The operative portion of the order is as follows:

"Complainant is thus entitled to the value of consignments
in question of Rs.29,73,321.45 alongwith interest thereon
which we quantify at 12% p.a. from the dates of booking
upto the date of filing complaint and pendentilite and future
D interest at the said rate from the opposite party. Since
interest has been awarded to the complainant it is not
entitled to any damage separately.

Accordingly, the complaint is allowed and opposite
E party is directed to pay Rs.29,74,321.45 with interest @
12% p.a. from the dates of book upto the date of filing
complaint and pendentilite and future interest at the said
rate. Opposite party will also pay Rs.25,000/- as costs."

27. Hence, the appeal.
F
28. Elaborate submissions are made by the learned senior
counsel appearing for either side in support of their respective
cases virtually reiterating their respective pleadings.

G 29. Since the case arises out of a contract for transport of
goods by the appellant to a foreign country, an examination of
the relevant provisions of the Customs Act, which deal with
export of goods, is necessary. Import and export of goods into
or out of India is regulated by the Customs Act, 1962 and the
H
'
• TRANSPORT CORPORATION OF INDIA LTD. v. 111
GANESH POLYTEX LTD. [J. CHELAMESWAR, J.]
Rules and Regulations made thereunder. Section 50 11 of the A
said Act stipulates that the exporter of any goods by land is
required to make an entry12 thereof by presenting to the proper
officer BILL OF EXPORT". Under Section 51, the proper
officer on receipt of a BILL OF EXPORT (contemplated under
Section 50) if satisfied that the exporter has paid the duty and B
other charges under the Act, if any, and that such goods are
not prohibited goods, may make an order permitting clearance
and loading of the goods for exportation. ·

30. Under Section 40, a person-in-charge of a conveyance
is not permitted to load export goods at a customs station c
unless a BILL OF EXPORT duly passed by the proper officer
has been handed over to the person-in-charge of the
conveyance by the exporter.

31. The relevant portion of Section 40 reads as follows: D
"40. Export goods not to be loaded unless duly passed
by proper officer.-The person-in-charge of a
conveyance 15 shall not permit the loading at a
customs station-
E
11. Section 50. Entry of goods for exportation.-(1) The exporter of any goods
shall make entry thereof by presenting electronically to the proper officer in
the case of goods to be exported in a vessel or aircraft, a shipping bill, and
in the case of goods to be exported by land, a bill of export in the prescribed
form."
12. Section 2(16) "entry", i~ relation to goods means an entry made in a bill of F
entry, shipping bill or bill of export and includes in the case of goods
imported or to be exported by post, the entry referred to in section 82 or the
entry made under the regulations made under section 84.
13. Section 2(5) "bill of export" means a bill of export referred to in section 50.
14. Section 51. Clearance of goods for exportation.-Where the proper officer is
satisfied that any goods entered for export are not prohibited goods and G
the exporter has paid the duty, if any, assessed thereon and any charges
payable under this Act in respect of the same, the proper officer may make
an order permitting clearance and loading of the goods for exportation.
15. Section 2(9) "conveyance" includes a vessel, an aircraft and a vehicle.
Section 2(42) "vehicle" means conveyance of any kind used on land and
includes a railway vehicle. H
112 SUPREME COURT REPORTS [2014] 11 S.C.R..

A (a) of export goods, .... unless a ... bill ()f export, ...
duly passed by the proper officer, has been handed
over to him by the exporter;

(b}
B
32. Section 41 of the Act mandates that the person-in-
charge of a conveyance carrying export goods shall deliver to
the proper officer an EXPORT REPORT in the prescribed form
in the case of an export by vehicle.

c "41. Delivery of export manifest or export report.-(1) The
person-in-charge of a conveyance carrying export
goods shall, before departure of the conveyance
from a customs station, deliver to the proper officer
in the case of a vessel or aircraft, an export manifest by
D Presenting electronically and in the case of a vehicle, an
export report in the prescribed form."

33. In exercise of the power conferred under Section 157,
read with Sections 50 and 60, of the Customs Act, 1962, the
Central Board of Excise and Customs made regulations,
E namely, Shipping Bill and Bill of Export (Form) Regulations,
1991 by a notification No.61/91 (N.T.)-Cus., dated 29.8.1991.
Regulation 3 thereof stipulates as follows:

"Regulation 3. Bill of Export.-A bill of export to be
F presented by an exporter of goods be in the form
specified in Annexure V, Annexure VI, Annexure VII
or Annexure VIII (Se Forms 97, 98, 99 and 100 in Part
5), as the case may be, appended to these
regulations."
G
34. Regulation 4 prescribes the specifications of the BILL
OF EXPORT form. 1•
16. Regulation 4. Specifications of Shipping Bill and Bill of Export (Form).- The
Shipping Bill and Bill of Export forms specified in Annexures 1 to VIII shall
be in accordance with the following spec'lfications, namely:-
H
• TRANSPORT CORPORATION OF INDIA LTD. v. 113
GANESH POLYTEX LTD. [J. CHELAMESWAR, J.]

35. By a notification No.422/76 dated 23.10.1976 which A
was subsequently amended by another notification, the Central
Board of Excise and Customs made regulations known as
Export Report (Form) Regulations, 1976. Regulation 3 thereof
stipulates that every EXPORT REPORT shall be delivered in
duplicate and cover all goods carried in a vehicle. B

36. Regulation 4 prescribes the form:-

"Regulation 4. Form of Export Report.-(1) The export
report to be delivered under section 41 of the
Customs Act, 1962 (52 of 1962) by the person-in-charge C
ofthe vehicle carrying export goods shall be in the
appended form (See Form 73 in Part 5) to these
regulations.

(2) It shall be printed on white paper of size 21.5 ems x D
34.5 ems of durable quality."

37. Thus, the movement of goods in the course of export
is meticulously regulated and recorded.

38. The appellant, who claims to have exported 4 of the 5 E
consignments handed over to it by the respondent, could not
have loaded the goods at Petrapole Customs station without
having obtained a BILL OF EXPORT duly passed by the

(a) the forms shall be printed on foolscap size of paper measuring 34.5 ems F
by 21.5 ems and shall have the following margins namely:-
(i) top - 1.5 ems, (ii) bottom - 1.5 ems, (iii) left - 1.8 ems, (iv) right - 0.5 ems
The layout of the forms and the size of the boxes shall be as per the layout
and boxes shown in the Annexure~;
(b) the forms shall be printed on paper of grammage 70 to 85 grams per G
square metre; the paper should be stable in conditions of 50 to 60 per
cent relative humidity;
(c) the captions inside the boxes of the forms should be printed in 6 pt. mono
sans-serif and should be located as near as possible to the top left of the
boxes;
(d) the forms shall be filled in by using a typewriter only. H
114 SUPREME COURT REPORTS [2014] 11 S.C.R . •

A proper officer and the person-in-charge of the conveyance
owned by the appellant could not have either loaded the goods
in the vehicle or departed from Petrapole Customs station
without delivering to the proper officer an EXPORT REPORT
in the prescribed form contemplated under Section 41.
B
39. The best proof of the case of the appellant that it had
in fact transported the goods in dispute beyond the Petrapole
Customs station and out of the customs frontier of India would
have been to produce the abovementioned two documents i.e.
copies of the BILL OF EXPORT and EXPORT REPORT
C pertaining to the four consignments in dispute. There is no
pleading on behalf of the appellant before the National
Commission nor any discussion in the order under appeal
regarding the existence of the abovementioned two documents
vis-a-vis the four consignments in questions. Except making a
D bald assertion in the written statement before the National
Commission that the appellant had delivered 4 consignments
out of the 5 consignments entrusted to it at Bena pole (which is
already taken note of at para 4 of this judgment,) the appellant
did not make any specific pleading regarding the actual dates
E of the:

1. permission by the proper officer under Section 51
for loading the goods for exportation; or the

2. delivery by the appellant of the EXPORT REPORT
F under Section 41 with reference to each of the 4
consignments which are allegedly transported and
delivered at the Benapole Customs Station
Warehouse of Bangladesh.

G 40. We are conscious that the production and proof of the
abovementioned documents may not be the only possible
evidence to establish that the appellant stood discharged of its
legal obligation.

41. It is the pleaded case of the appellant that its legal
H
• TRANSPORT CORPORATION OF INDIA LTD. v.
GANESH POLYTEX LTD. [J. CHELAMESWAR, J.]
obligation as transporter ends on its delivering the goods
entrusted to it at Benapole Customs station. Unloading of
115

A

imported goods at any customs station in this country is also
regulated by the provisions of the Customs Act, 1962. We are
sure that it must be equally regulated by the law of Bangladesh.
What exactly the law of Bangladesh is in this regard and how B
the factum of delivery of goods allegedly carried and delivered
by the appellant at Benapole is to be proved are two distinct
and different matters. It is a settled principle of private
international law that foreign law is always a question of fact
which is required to be pleaded and proved by the party whose c
rights or obligations flow from such foreign law. There is no
pleading or proof in this regard in the instant case.

42. The appellant did not plead as to what is the procedure
prescribed under the law of Bangladesh for the unloading of
the imported goods at its Customs Stations? Nor does the D
appellant give the details of the dates of the actual delivery of
each of the 4 consignments at Bengapole.

43. However, the appellant placed heavy reliance on a letter
dated 11.04.2002 allegedly written by some officer of the E
Customs Department of the Republic of Bangladesh at
Beanpole addressed to the Joint Commissioner, Customs
Department, Benapole - Jessore (Bangladesh). It refers to four
bills of entry dated 9.1.1993, 13.12.1992, 20.12.1992 and
11.02.1993. The relevant portion of the document reads as F
follows:

"(1) Bill of entry No. - 14305 dated 9.1.1993 of shipping
bill No.4949/DB dated 28.12.1992 has been accepted by
Mis. Azim Garments Limited Dhaka - Bangladesh. Goods
- fabrics 21 bales and name of shipping agent MIS. Mun G
Mun Shipping - Benapole.

(2) Bill of entry No.2267 dated 13.12.1992 of shipping bill
No.3833/DB dated 2.11.1992 has been accepted by M/
s. Azim Garments Limited, Dhaka - Bangladesh. Goods H
116 SUPREME COURT REPORTS [2014) 11 S.C.R. •

A - fabric 30 bales and name of shipping agent Tlieir Green
(Mun Mun) Benapole.

(3) Bill of entry No.12516 dated 20.12.1992 of shipping
bill No. - 3834/DB dated 2.11.1992 has been accepted
by M/s. Azim Garments Ltd. Dhaka - Bangladesh. Goods
B
fabrics 30 bales and name of shipping agent M/s.
Madeezuddin (A-29).

(4) The goods of shipping bill No.699/DB dated
11.02.1993 has not been accepted by the party. The
c goods have been auctioned."

44. It is rather difficult to understand the content of this
document, apart from the other problems with the document
which shall be discussed later. It speaks about three bills of
D entry having had been "accepted" through three different
shipping agents of Mis. Azim Garments Ltd., Dhaka. Of the 4th
bill of entry having not being accepted, the goods were
auctioned. It is difficult to understand what exactly is meant by
'accepting a bill of entry'. At least, insofar as the Indian law is
E concerned, a bill of entry is a document, under Section 4617 of
17. 46. Entry of goods on importation. - (1) The importer of any goods, other
than goods intended for transit or transhipment, shall make entry thereof
by presenting electronically fo the proper officer a bill of entry for home
consumption or warehousing in the prescribed form :
Provided that the Commissioner of Customs may, in cases where it is not
F feasible to make entry by presenting electronically , allow an entry to be
presented in any other manner:
Provided further that if the importer makes and subscribes to a declaration
before the proper officer, to the effect that he is unable for want of full
information to furnish all the particulars of the goods required urider this
sub-section, the proper officer may, pending the production of such
G information, permit him, previous to the entry thereof (a) to examine the
goods in the presence of an officer of customs, or (b) to deposit the goods
in a public warehouse appointed under section 57 witho.ut warehousing
the same.
(2) Save as otherwise permitted by the proper officer, a bill of entry shall
include all the goods mentioned in the bill of lading or other receipt given
by the carrier to the consignor.
H
\
TRANSPORT CORPORATION OF INDIA LTD. v. 117
GANESH POLYTEX LTD. [J. CHELAMESWAR, J.]
the Customs Act,' which is required to be presented by the A
importer. Section 47 stipulates that on receipt of a bill of entry,
the proper officer, on being satisfied about the legality of the
import and the factum of payment of the appropriate duty on
the import of such goods, is required to clear the goods.
Assuming that the law of Bangladesh is similar to the law of 8
Customs in India, it is therefore difficult to understand ihe
content of the said letter. It speaks about acceptance of three
bills of entry on different dates by three different shipping agents
of Mis. Azim Garments Ltd. No explanation in the pleading as
to what exactly is the implication of the statement extracted c
above is available. Assuming for the sake of argument, the letter
seeks to convey that the bills of entry for three different
consignments had been presented by the shipping agents of
Mis. Azim Garments Ltd. and cleared the goods covered by
those bills of entry, there is nothing in the letter to indicate that
D
the goods covered by the said bills of entry are the goods which
are covered by the four consignment notes which are in issue
in this appeal.

45. The document purports to be the internal
correspondence between the two officers of the Customs E

(3) A bill of entry under sub-section (1) may be presented at any time after the
delivery of the import manifest or import report as the case maybe :
Provided that the Commissioner of Customs may in any special
circumstances permit a bill of entry to be presented before the delivery of F
such report :
Provided further that a bill of entry may be presented even before the delivery
of such manifest if the vessel or the aircraft by which the goods have been
shipped for importation into India is expected to arrive within thirty days
from the date of such presentation.
(4) The importer while presenting a bill of entry shall at the foot thereof make G
and subscribe to a declaration as to the truth of the contents of such bill of
entry and shall. in support of such declaration, produce to the proper officer
the invoice, if any. relating to the imported goods.
(5) If the proper officer is satisfied that the interests of revenue are not
prejudicially affected and that there was no fraudulent intention, he may
permit substitution of a bill of entry for home consumption for a bill of entry H
for warehousing or vice versa.
A
11!l. SUPREME COURT REPORTS [2014) 11 S.C.R.

department of Bangladesh, no doubt purportedly with a copy
•
marked to the appellant herein. There is no pleading explaining
the occasion for such a correspondence. The proof of public
documents is required to be made in the manner specified
under Section 78 of the Evidence Act. Sub-section (6) stipulates
B the mode of ·proof of public documents other than those
mentioned in sub-section (4) of a foreign country.

"Section 78. Proof of other official documents.-The
following public documents may be proved as follows.-

c (1) to (3) x x x
(4) The acts of the Executive or the proceedings of the
Legislature of a foreign country.-

by journals published by their authority, or commonly
D received in that country as such, or by a copy of certified
under the seal of the country or sovereign, or by a
recognition thereof in some Central Act;

(5) x x x
E
(6) Public documents of any other class in a foreign
country.-

by the original, or by a copy certified by the legal keeper
thereof, with a certificate under the seal of a Notary Public,
F or of an Indian Consul or diplomatic agent, that the copy
is duly certified by the officer having the legal custody of
the original, and upon proof of the character of the
document according to the law of the foreign country."

G 46. There is nothing on record to establish that the
abovementioned letter has been duly proved in accordance
with Section 78 of the Evidence Act.

47. For all the above-mentioned reasons, the defence of
the appellant based on the letter dated 10.04.2002 (supra) that
H.
··~ TRANSPORT CORPORATION OF INDIA LTD. v. 119
GANESH POLYTEX LTD. [J. CHELAMESWAR, J.]

the appellant had delivered four consignments entrusted to it A
by the respondent at the Benapole Customs Station,
Bangladesh cannot be accepted.

48. The other submission of the appellant that in view of
the fact that the respondent herein claimed a duty drawback B
on the strength of the export of the goods which are the subject
matter of dispute in this appeal, the respondent cannot dispute
the fact that the goods were duly exported, i.e. duly transported
beyond India customs frontier and delivered at the Benapole
Customs station at Bangladesh. c
49. The subject of drawback is dealt under Chapter X of
the Customs Act 1962. The expression 'drawback' is not
defined under the Act. Sections 74 and 75 create a right to
claim a 'drawback'. Section 74 18 entitles an exporter to claim
D
18. 74. Drawback allowable on re-export of duty-paid goods. - (1) When any
goods capable of being easily identified which have been imported into
India and upon which any duty has been paid on importation, -
(i) are entered for export and the proper officer makes an order
permitting clearance and loading of the goods for exportation under E
section 51; or
(ii) are to be exported as baggage and the owner of such baggage, for
the purpose of clearing it, makes a declaration of its contents to the
proper officer under section 77 (which declaration shall be deemed to
be an entry for export for the purposes of this section) and such officer
makes an order permitting clearance of the goods for exportation; or
(iii) are entered for export by post under section 82 and the proper officer F
makes an order permitting clearance of the goods for exportation,ninety-
eight per cent of such duty shall, except as otherwise hereinafter
provided, be re-paid as drawback, if -
(a) the goods are identified to the satisfaction of the Assistant
Commissioner of Customs or Deputy Commissioner of Customs as the
goods which were imported; and G
(b) the goods are entered for export within two years from the date of
payment of duty on the importation thereof:
Provided that in any particular case the aforesaid period of two years
may, on sufficient cause being shown, be extended by the Board by such
further period as it may deem flt.
H
120 SUPREME COURT REPORTS

A the repaymenVreturn (drawback) of 9.8% of any duty paid on
[2014] 11 S.C.R.
•
material imported into India when again exported out of India
subject to the various conditions specified under the Section
and the Rules made thereunder.

B 50. Section 75 19 provides for a drawback to be paid to the
exporter of any goods who used any imported material of a
class or description notified by the Government of India in the

19. 75. Drawback on imported materials used in the manufacture of goods
which are exported. -
c (1) Where it appears to the Central Government that in respect of goods of
any class or description manufactured, processed or on which any
operation has been carried out in India , being goods which have been
entered for export and in respect of which an order permitting the clearance
and loading thereof for exportation has been made under section 51 by
the proper officer, or being goods entered for export by post under section
D 82 and in respect of which an order permitting clearance for exportation
has been made by the proper officer, a drawback should be allowed of
duties of customs chargeable under this Act on any imported materials of
a class or description used in the manufacture or processing of such goods
or carrying out any operation on such goods, the Central Government may,
by notification in the Official Gazette, direct that drawback shall be allowed
in respect of such goods in accordance with, and subject to, the
E rules made under sub-section (2).
Provided that no drawback shall be allowed under this sub-section in
respect of any of the aforesaid goods which the Central Government may,
by rules made under sub-section (2), specify, if the export value of such
goods or class of goods is less than the value of the imported materials
used in the manufacture or processing of such goods or carrying out any
F operation on such goods or class of goods, or is not more than such
percentage of the value of the imported materials used in the manufacture
or processing of such goods or carrying out any operation on such goods
or class of goods as the Central Government may, by notification in the
Official Gazette, specify in this behalf :
Provided furthe.r that where any drawback has been allowed on any goods
G under this sub-section and the sale proceeds in respect of such goods
are not received by or on behalf of the exporter in India within the time
allowed under the Foreign Exchange Management Act, 1999 (42 of 1999),
such drawback shall except under such circumstances or such conditions
as the Central Government may, by rule, specify be deemed never to have
been allowed and the Central Government may, by rules macle under sub-
section (2), specify the procedure for the recovery or adjustment of the
H amount of such drawback.
• TRANSPORT CORPORATION OF INDIA LTD. v.
GANESH POLYTEX LTD. [J. CHELAMESWAR, J.]
manufacture or processing of the goods which are sought to
121

A
be exported, subject to other conditions stipulated under the
said Section and the Rules made thereunder.

51. Once again in the case on hand, it is not clear from
the pleadings of the appellant whether the respondent herein
8
claimed a drawback either under Section 74 or under Section
75. Be that as it may. In either case, the right to a drawback
accrues to the exporter once the exporter makes an entry for
export of the goods under Section 50 of the Act and on the
making of an order by the proper officer under Section 51 C
permitting clearance and loading of the goods. The scope of
both of these sections has already been examined earlier in
this judgment.

52. Rules are made by the Government of India from time
to time in this regard. The Rules currently in vogue are known D
as the "Customs, Central Excise, Duty and Service Tax
Drawback Rules, 1995", which are made in exercise of the rule
making authority conferred under the various enactments
including the Customs Act. However, these rules are
subsequent to the export transaction in question. Neither the E
relevant rules governing the situation on the date when the
respondent claimed the drawback are placed before us nor is
there any clear pleading by either party as to the relevant date
on which such a claim for drawback could be made. We are
not sure whether under the rules applicable to the transaction F
in question, whether it is the date of the actual delivery of the
goods in the foreign country which entitles the exporter to file
an application claiming drawback or is it the date of the entry
of the goods for export from India. In the absence of any material
on record such as the one indicated above, the mere fact that G
the respondent did claim (the respondent admitted that they did
claim a duty drawback as alleged by the appellant) a duty
drawback does not necessarily lead to the inference that the
appellant had duly delivered the goods in question at Benapole
Customs station.
H
A
122 SUPREME COURT REPORTS [2014] 11 S.C.R.

53. Under the 1995 Drawback Rules, which are in force
•
today, Rule 13 stipulates that the claim for a drawback can be
filed on the date when the proper officer makes an order
permitting clearance and loading of the goods under Section
51 of the Act. We refer to Rule 13 not because it is applicable
B ·to the facts of the case, but only to demonstrate that the law
clearly provides for the date and event, the happening of which,
entitles the exporter for seeking the drawback.

54. In view of the fact that the appellant admitted the
entrustment of goods by the respondent to the appellant for
C transportation to Benapole (Bangladesh), the burden to prove
that the appellant satisfactorily discharged his legal obligation
to deliver the goods at Benapole (Bangladesh) in accordance
with law is on the appellant which burden the appellant failed
to discharge. In our opinion, therefore, the National Commission
D rightly allowed the claim of the respondent. We do not see any
reason to interfere with the same. Appeal is dismissed. No
order as to costs.

Kalpana K. Tripathy Appeal dismissed