Jasti Chelameswar, J.— This is an appeal under Section 23 of the Consumer Protection Act, 1986 against the order dated 20-12-2006 of the National Consumer Disputes Redressal Commission (for short “the National Commission”) in Ganesh Polytex Ltd. v. Transport Corpn. of India Ltd. Original Petition No. 341 of 1993 The respondent opposite party in the abovementioned original petition is the appellant herein. The sole respondent herein was the complainant before the National Commission.
2. By the impugned order Original Petition No. 341 of 1993, the National Commission 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% p.a from the date of the filing of the complaint till the date of realisation apart from the cost quantified at Rs 25,000.
3. The substance of the complaint before the National Commission is as follows: both the parties to the complaint are public companies 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. In the year 1992, the respondent received an indent for export of 100% 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 M/s Aleef Enterprises (Trading), Dhaka calling upon the respondent to export the goods specified in the indent to M/s Azim Garments Ltd. in Dhaka, Bangladesh.
4. According to the complaint, the respondent was required to dispatch the entitled goods and “negotiate various documents including invoice, consignment copy of the goods received and consignment note bill of exchange, etc.” through M/s Islami Bank Bangladesh Ltd., allegedly, the banker of M/s Azim Garments Ltd., Dhaka. The respondent averred in the complaint that it had agreed to send the various documents to be negotiated with the said Islami Bank and acceptance by the respondent's banker i.e American Express Bank Ltd. It is further stated in the complaint that the said Islami Bank was entitled to take delivery of the goods or endorse the consignee copy of the goods receipt/consignment note in favour of M/s Azim Garments Ltd.
5. The respondent entrusted five consignments of goods to the appellant on various dates, the details of which are as follows:
Invoice No.
Date
Qty in metres
Amount in US $
Consignment Note No.
Date
EXP/2
28-10-1992
13982
18,176.60
A 08465
28-10-1992
EXP/3
5-11-1992
25109
32,641.70
A 08565
5-11-1992
EXP/4
14-12-1992
12208
15,870.40
A 08658
16-11-1992
EXP/5
30-1-1993
16188
21,044.60
A 98738
29-12-1992
EXP/6
25-2-1993
5447
7,081.10
A 11351
15-2-1993
94,814.20
Para 4 of the complaint
6. 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 that the goods which are the subject-matter of the abovementioned five consignments are required to be delivered upon the production of the consignee's copy of the respective consignment notes.
7. According to the respondent, all the relevant documents including the consignee copies of the consignment notes were duly communicated by the respondent through its banker to the Islami 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 Islami Bank but the said letter of credit had expired. Therefore, the documents mentioned above were sent to the said banker on collection basis.
8. It appears from the complaint that the Islami 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-import the goods back to India”. Admittedly, the said documents were returned unpaid by the Islami Bank Bangladesh to the complainant's banker.
9. Upon the return of the original documents by the Islami Bank, the respondent herein, by its letter dated 12-7-1993, 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 22-7-1993, assured the respondent that all the five consignments would be rebooked for delivery at New Delhi. The appellant further called upon the respondent “to surrender the original consignee copies along with the invoice copies and pay one side freight and octroi at its Ahmedabad Office for rebooking”.
10. In reply to the letter dated 22-7-1993 of the appellant, the respondent, by its letter dated 31-7-1993, called upon the appellant to confirm inter alia “that the goods covered under the said consignment note were available with the respondent and the location of the said goods”. The appellant replied by its letter dated 16-8-1993 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 copies”.
11. On 28-8-1993, the respondent sent another letter seeking unequivocal answers to the various enquiries made by the respondent in its earlier letter dated 22-7-1993.
12. In reply, the appellant, by its letter dated 11-9-1993, confirmed that all the aforesaid 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
Ch.No.A-08565 dated 5-11-1992
Ch.No.A-08658 dated 16-11-1992
Ch.No.A-098738 dated 29-12-1992
A-11351 dated 15-2-1993
All Ex. Ahmedabad to Benapole
We have received your Letter No. RKV/M-889 dated 28-8-1993 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 freight and other dues then only we will rebook the above consignments. 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 and sound condition. When your client will send the D/D for our dues with original consignee copy to our Ahmedabad or Calcutta Office then our office concerned 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 is going on higher side day by day @ 3 paise per kilogram per day.
We hope, you understood all the points and take necessary action immediately.”
13. The said letter was followed by another letter of the appellant dated 29-9-1993, the relevant portion reads as follows:
“Sub.: Ch.No.A-08465 dated 28-10-1992
Ch.No.A-08565 dated 5-11-1992
Ch.No.A-08658 dated 16-11-1992
Ch.No.A-098738 dated 29-12-1992
A-11351 dated 15-2-1993
All Ex. Ahmedabad to Benapole
This has reference to our earlier Letter No. SBD/OPN/INM/3569/93 dated 11-9-1993 regarding above consignments.
As per the reply received from our Calcutta Office, first four consignments have already been exported and the 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 D/D to our Ahmedabad or Calcutta Office directly for their necessary action. On receipt of consignee copy and D/D, our Calcutta Office will rebook this consignment to Delhi.”
14. In the background of the abovementioned facts, the 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 totalling to Rs 40,98,164.04 along with pendente lite interest and future interest @ 21% p.a on Rs 34,74,321.45 along with costs.
15. 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 (as specified in the complaint) were entrusted to the appellant for being transported from Ahmedabad to Benapole (Bangladesh). According to the appellant, of the abovementioned five consignments, four consignments were in fact delivered. The relevant portion of the appellant's written statement reads as follows:
“The opposite party duly cleared the consignments at Indo-Bangladesh border from Indian Customs and as per export procedure duly handed over the same to the Bangladesh Customs Officer which duly acknowledged the receipts of the said four consignments.”
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.
16. 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:
“The subject consignments were meant for carriage by lorry transport from Ahmedabad/Odhav to Benapole (Bangladesh) and as per the export procedure and/or as customary said goods were to be unloaded and delivered after crossing Indian border at Petrapole into the warehouse of Bangladesh Customs at Benapole. The importer consignee was to take delivery of the said goods after paying the customs duties after complying with the 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 and to deliver the same to the Benapole Bangladesh Custom Warehouse as per prevalent procedure of exporting the materials to Benapole (Bangladesh) from India. The opposite party duly transported the said four consignments and delivered the same at Benapole.”
17. 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 defence of the appellant that: (a) the said letter only explained the procedure for rebooking of the consignments; and (b) the admission regarding the custody of the five consignments was a mistake of fact in view of the communication gap between the appellant's headquarter and its various branch offices. Within a short period after delivering the letter the appellant realised its mistake and explained its position by subsequent letter dated 29-9-1993 (the contents of which have already been extracted earlier).
18. It is further the defence of the appellant that once the goods crossed Indian customs frontier during the course of export of such goods, only the exporter can bring back the goods by following the procedure under the law. The appellant also took a defence that the respondent availed the duty drawn back credit under 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. 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.
19. 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 documents produced by the appellant herein are “bogus”.
20. The National Commission also examined two letters dated 8-4-2002 and 10-4-2002. These two letters were sent by the Customs Authorities of Petrapole, Kolkata and Benapole (Bangladesh), respectively in response to the letters dated 14-3-2002 and 12-3-2002, respectively of the appellant. The National Commission recorded a finding, “therefore, neither these two letters nor the endorsements and seals of Cargo Officer along with signatures on the 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 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 along with interest thereon which we quantify at 12% p.a from the dates of booking up to the date of filing complaint and pendente lite and future 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 party is directed to pay Rs 29,74,321.45 with interest @ 12% p.a from the dates of book up to the date of filing the complaint and pendente lite and future interest at the said rate. Opposite party will also pay Rs 25,000 as costs.”
Hence, the appeal.
21. Elaborate submissions are made by the learned Senior Counsel appearing for either side in support of their respective cases virtually reiterating their respective pleadings.
22. 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 Rules and Regulations made thereunder. Section 50 of the said Act stipulates that the exporter of any goods by land is required to make an entry 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 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.
23. Under Section 40, a person in charge of a conveyance is not permitted to load export goods at a customs station 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. The relevant portion of Section 40 reads as follows:
“40. Export goods not to be loaded unless duly passed by proper officer.—The person in charge of a conveyance shall not permit the loading at a customs station—
(a) of export goods … unless a … bill of export … duly passed by the proper officer, has been handed over to him by the exporter;”
(emphasis supplied)
24. 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.
“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 presenting electronically, and in the case of a vehicle, an export report, in the prescribed form:”
(emphasis supplied)
25. 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, namely, the Shipping Bill and Bill of Export (Form) Regulations, 1991 by Notification No. 61 of 1991 (N.T)-Cus. dated 29-8-1991. Regulation 3 thereof stipulates as follows:
“3. Bill of export.—A bill of export to be presented by an exporter of goods be in the form specified in Annexure V, Annexure VI, Annexure VII or Annexure VIII [See Forms 97, 98, 99 and 100 in Part 5], as the case may be, appended to these Regulations.”
(emphasis supplied)
Regulation 4 prescribes the specifications of the bill of export form.
26. By Notification No. 422/76 dated 23-10-1976 which was subsequently amended by another notification, the Central Board of Excise and Customs made regulations known as the 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. Regulation 4 prescribes the form:
“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 of the 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 cm × 34.5 cm of durable quality.”
(emphasis supplied)
27. Thus, the movement of goods in the course of export is meticulously regulated and recorded.
28. The appellant, who claims to have exported four of the five 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 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.
29. 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 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-à-vis the four consignments in questions. Except making a bald assertion in the written statement before the National Commission that the appellant had delivered four consignments out of the five consignments entrusted to it at Benapole (which is already taken note of at para 15 of this judgment), the appellant did not make any specific pleading regarding the actual dates of the:
(1) permission by the proper officer under Section 51 for loading the goods for exportation; or
(2) delivery by the appellant of the export report under Section 41 with reference to each of the four consignments which are allegedly transported and delivered at the Benapole Customs Station Warehouse of Bangladesh.
30. 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.
31. It is the pleaded case of the appellant that its legal obligation as transporter ends on its delivering the goods entrusted to it at Benapole Customs Station. Unloading of 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 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 rights or obligations flow from such foreign law. There is no pleading or proof in this regard in the instant case. 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 appellant give the details of the dates of the actual delivery of each of the four consignments at Benapole.
32. However, the appellant placed heavy reliance on a letter dated 11-4-2002 allegedly written by some officer of the Customs Department of the Republic of Bangladesh at Benapole 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 11-2-1993. The relevant portion of the document reads as 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 M/s Azim Garments Ltd. Dhaka, Bangladesh. Goods—fabrics 21 bales and name of shipping agent M/s Mun 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 Ltd., Dhaka, Bangladesh. Goods—fabrics 30 bales and name of shipping agent Their 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—fabrics 30 bales and name of shipping agent M/s Madeezuddin (A-29).
(4) The goods of Shipping Bill No. 699.DB dated 11-2-1993 has not been accepted by the party. The goods have been auctioned.”
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 entry having had been “accepted” through three different shipping agents of M/s Azim Garments Ltd., Dhaka. Of the fourth 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”.
33. At least, insofar as the Indian law is concerned, a bill of entry is a document, under Section 46 of the Customs Act, which is required to be presented by the 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 Customs in India, it is therefore difficult to understand the content of the said letter dated 11-4-2002. It speaks about the acceptance of three bills of entry on different dates by three different shipping agents of M/s Azim Garments Ltd. No explanation in the pleading as to what exactly is the implication of the statement extracted 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 M/s Azim Garments Ltd. and cleared the goods covered by those bills of entry, there is nothing in the letter to indicate that 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.
34. The document purports to be the internal correspondence between the two officers of the Customs 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. Clause (6) stipulates the mode of proof of public documents other than those mentioned in clause (4) of a foreign country.
“78. Proof of other official documents.—The following public documents may be proved as follows—
(1)-(3)***
(4) the acts of the executive or the proceedings of the legislature of a foreign country—
by journals published by their authority, or commonly received in that country as such, or by a copy certified under the seal of the country or sovereign, or by a recognition thereof in some Central Act;
(5)***
(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, 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.”
There is nothing on record to establish that the abovementioned letter has been duly proved in accordance with Section 78 of the Evidence Act.
35. For all the abovementioned reasons, the defence of the appellant based on the letter dated 10-4-2002 (supra) that the appellant had delivered four consignments entrusted to it by the respondent at Benapole Customs Station, Bangladesh cannot be accepted.
36. The other submission of the appellant that in view of the fact that the respondent herein claimed a duty drawback 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 Indian customs frontier and delivered at Benapole Customs Station at Bangladesh.
37. The subject of drawback is dealt with 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 entitles an exporter to claim the repayment/return (drawback) of 98% of any duty paid on material imported into India when again exported out of India subject to the various conditions specified under the section and the Rules made thereunder. Section 75 1999 (42 of 1999) 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 manufacture or processing of the goods which are sought to be exported, subject to other conditions stipulated under the said section and the Rules made thereunder.
38. Once again in the case on hand, it is not clear from the pleadings of the appellant whether the respondent herein 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 permitting clearance and loading of the goods. The scope of both of these sections has already been examined earlier in this judgment.
39. Rules are made by the Government of India from time to time in this regard. The Rules currently in vogue are known as the “Customs, Central Excise Duties 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 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 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 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.
40. 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 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.
41. 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 (Bangladesh) in accordance with law is on the appellant, which burden the appellant failed to discharge. In our opinion, therefore, the National Commission rightly allowed the claim of the respondent. We do not see any reason to interfere with the same. The appeal is dismissed. No order as to costs.