JUDGMENT - M.L. PENDSE, J.:---This is an appeal preferred by the original plaintiff to challenge the legality of the judgment dated October 1, 1976 delivered by Mr. Justice Lentin dismissing the plaintiff's suit for recovery of a sum or Rs. 3,18,830/- comprising Rs. 2,36,265/- and Rs. 82,565/- being the duty allegedly payable in respect of certain goods covered by Shipping Bills Nos. 1311 and 1312 both dated August 4, 1954. The learned trial Judge dismissed the suit on the preliminary issue that the plaintiffs had no cause of action. 2. The facts which gave rise to the institution of the suit are as follows : On August 11, 1954, the defendant's Agents M/s. James Finaly Company presented to the Customs House at Bombay two Shipping Bills bearing Nos. 1311 and 1312 pertaining to two consignments of Indian Manganese Ore to be exported to Baltimore, U.S.A. on board the vessel s.s. Atlantic Wave. On the date of presentation of the shipping bills, the export to Manganese ore was liable to the payment of customs duty as provided under Item 7 of the second scheduled to the Indian Tariff Act, 1934. On August 18, 1954 the Government of India, Ministry of Finance, published a notification in exercise of the powers conferred by section 25 of the Sea Customs Act, 1878 exempting the Manganese ore exported from India falling under Item 7 of the second schedule to the Indian Tariff Act, 1934 from the whole of the customs duty leviable thereon. The shipping bills bearing Nos. 1311 and 1312 presented by the defendant's agents were scrutinized by the Customs Department and the defendants were called upon to pay the amount of duty. There is dispute between the parties as to whether the shipping bills remained in the custody of the Customs Houses or were returned to the defendants. The plaintiffs claim that the shipping bills were returned to the defendants agents for payment of duty and for compliance with other requirement while on the other hand, the defendants claim that original shipping bills were returned back by the defendant's agents to the Customs Appraiser when fresh shipping bills in respect of the same goods to be exported by the vessel Atlantic Wave were presented on August 23, 1954. It is not necessary to enter into the controversy in the present appeal because it is not in dispute that fresh Shipping Bills bearing Nos. It is not necessary to enter into the controversy in the present appeal because it is not in dispute that fresh Shipping Bills bearing Nos. 10502 and 10503 dated August 23, 1954 were presented by the defendants agents to the Customs House in respect of the same consignments covered by the original Shipping Bills bearing Nos. 1311 and 1312. Bills bearing Nos. 10502 and 10503 were exported to Baltimore when the ship left the Indian shores on September 18, 1954. 3. On September 6, 1954 i.e. prior to the vessel leaving the Indian shore, the defendants informed the Assistant Collector of Customs, Bombay, by letter annexed as Exhibit 1 to the plaint that the shipping bills bearing Nos. 1311 and 1312 presented on August 11, 1954 were withdrawn before the Customs formalities were completed. The defendants called upon the Assistant Collector of Customs to cancel and return the guarantees given in respect of two shipping bills. The plaintiffs became aware of the claim of the defendants that the two shipping bills presented on August 11, 1954 were withdrawing and fresh shipping bills were presented on August 23, 1954. Inspite of being aware on the claim of the defendants, the plaintiffs permitted the export of the consignments on September 18, 1954 under two shipping bills presented on August 23, 1954. Almost two years thereafter in November 1956, the Assistant Collector of Customs called upon the defendants to pay the duty in respect of the export of manganese ore on the assumption that the export was complete on August 11, 1954 when the two shipping bills were presented. A large correspondence ensued between the parties and the perusal of the correspondence indicates that the plaintiffs were claiming that the two shipping bills bearing Nos. 1311 and 1312 were never cancelled by the Customs Department and though the shipments were made by the same vessel s.s. Atlantic Wavem, under fresh two shipping bills dated August 23, 1954 the shipments have to be treated as having been made on the original two shipping bills presented on August 11, 1954 and the liability to payment of extra duty falls squarely on the defendants. The defendants on the other hand, claimed in the correspondence that the original two Shipping Bills bearing Nos. 1311 and 1312 were withdrawn by them and handed over to the Customs Apparise for cancellation. The defendants on the other hand, claimed in the correspondence that the original two Shipping Bills bearing Nos. 1311 and 1312 were withdrawn by them and handed over to the Customs Apparise for cancellation. The defendants claim that fresh shipping bills were presented on August 23, 1954 i.e. the date after the publication of exemption notification dated August 18, 1954 and as the consignments were exported under the fresh shipping bills, they are not liable for payment of any duty. 4. The plaintiffs in spite of this correspondence in the year 1956, chose to file the suit for recovery of the amount of Rs. 3,18,830/- only on July 18, 1966 on the Original Side of this Court. The plaint, merely claims that the Customs House, Bombay accepted the fresh shipping bills, presented on August 23, 1954 in ignorance of the fact that the same were submission in respect of the same goods covered by the earlier two shipping bills bearing Nos. 1311 and 1312. In the plaint, it is further claimed that the original shipping bills which were handed over to the defendants were never return to the Customs Department and as the defendants never took any step for cancellation of the earlier two shipping bills, the liability to pay the duty still subsists and the defendants are not entitled to take advantage of the exemption notification dated August 18, 1954. 5. The defendants, by their written statement, inter alia, claimed that the earlier two shipping bills were withdrawn and were returned to the Customs Appraise when the fresh shipping bills were presented on August 23, 1954. The defendants claim that as the export was carried out in pursuance of the shipping bills presented on August 23, 1954, they are not liable to pay any duty as the entire duty was exempted under the notification dated August 18, 1954. In view of these rival pleadings, the learned trial Judge framed 11 issues but with consent of the parties tried first three issues as the preliminary issues. The three issues which were tried as preliminary issues covered the question as to whether the plaintiffs have any cause of action. 6. The trial Judge recorded a finding against the plaintiffs on the preliminary issues and dismissed the suit. The three issues which were tried as preliminary issues covered the question as to whether the plaintiffs have any cause of action. 6. The trial Judge recorded a finding against the plaintiffs on the preliminary issues and dismissed the suit. The learned trial Judge came to the conclusion that the vessel s.s. Atlantic Wave left the territorial waters of India on September 18, 1954 and that being the relevant date to ascertain whether the consignments were liable to the payment of customs duty, it is obvious that the defendants are not liable to pay any duty in view of the exemption notification. The learned trial Judge relied upon the decision in the case of (Yusuf Abdulla Patel v. R.N. Shukla)1, reported in 72 Bom.L.R. 575 and the decision in the case of (Shawhney v. Sylvania and Laxman)2, reported in 77 Bom.L.R. 308 to hold that the chargeability in respect of the levy of customs arises when the good leave the territorial waters of the territorial limits of India. 7. Mr. Advani, learned Counsel appearing in support of the appeal, submitted that the view taken by the learned trial Judge by placing reliance upon the decision in the case of Shawhney v. Sylvania and Laxman, reported in 77 Bom.L.R. 380 is not correct and is contrary to the decision of the Supreme Court in the case of (Gangadhar Narsinghdas Agarwal v. P.S. Thrivikraman and another)3, reported in A.I.R. 1973 Supreme Court 350. It was urged by Mr. Advani that the rate of duty has to be determined having regard to the rate leviable on the date on which the shipping bills in respect of such goods were presented to the Customs Authorities and in support of this submissions reliance was placed on the provisions of section 20(1)(a) and 38 of the Sea Customs Act, 1878. The submissions of Mr. Advani that relevant date to ascertain whether the goods are liable for payment of customs duty is the date of presentation of the shipping bills seems to be correct. Section 31 of the Sea Customs Act, inter alia, provides that the rate of duty and tariff valuation (if any) applicable to any goods to be exported shall be the rate and valuation in force when a shipping bills of such goods is delivered under section 137. Section 31 of the Sea Customs Act, inter alia, provides that the rate of duty and tariff valuation (if any) applicable to any goods to be exported shall be the rate and valuation in force when a shipping bills of such goods is delivered under section 137. Reading the provisions of sections 20(10(a), 38 and 137 of the Sea Customs Act the submissions of Mr. Advani that the relevant date of ascertain whether the defendants are liable for payment of customs duty is the date of presentation of the shipping bills requires to be accepted. 8. The submissions of Mr. Advani on this aspect is supported by the decision of the Supreme Court in the case of Gangadhar Narsinghdas v. P.S. Thrivikramam and another reported in A.I.R. 1973 Supreme Court 350, but this contention of Mr. Advani would not make any difference to the conclusion reached by the learned trial Judge. On the facts stated hereinabove and on which there is no dispute, it is clear that though initially the defendant's agents presented two Shipping Bills bearing Nos. 1311 and 1312 on August 11, 1954 the goods were not exported under the said shipping bills. Without entering into the controversy as to whether the original shipping bills were retained by the defendants or handed over to the Customs Appraiser when the fresh shipping bills were presented, it is clear that the goods were exported under the fresh shipping bills presented on August 23, 1954 the duty on which the export was not liable to payment of any customs duty in view of the customs notification dated August 18, 1954. The plain reading of section 38 of the Act makes it clear that the rate of duty and tariff valuation applicable to any goods exported shall be the rate and the present case were admittedly delivered on August 23, 1954 and on that date in view of the exemption notification the levy of the entire customs duty was exempted. 9. Shri Advani urged that even though the goods were exported under the shipping bills dated August 23, 1954, that would not make any difference because as along as the defendants did not take steps to cancel the earlier shipping bills, they were liable to pay duty. We are unable to accept this submission. 9. Shri Advani urged that even though the goods were exported under the shipping bills dated August 23, 1954, that would not make any difference because as along as the defendants did not take steps to cancel the earlier shipping bills, they were liable to pay duty. We are unable to accept this submission. In the first instance, there was no occasion for the Customs Department to accept shipping bills in respect of the same consignments under the same vessel Atlantic Wave. Secondly even prior to the ship sailing the Bombay Port i.e. September 18, 1954, the defendants agents had in formed the Assistant Collector of Customs by letter dated September 6, 1954 that the initial Shipping Bills Nos. 131 and 1312 were withdrawn by them. In spite of the receipt of this letter and in spite of the knowledge that the defendants had withdrawn the earlier two shipping bills and presented the shipping bills on August 23, 1954 in respect of the same consignments the Customs Authorities took no steps to prevent the export of the goods on September 18, 1954. This fact, in our judgment leaves no manner of doubt that the claim of the plaintiffs that the two shipping bills presented on August 23, 1954 were completed and passed in ignorance of the fact that the two earlier shipping bills were presented in respect of the same goods is without any substance. The Customs authorities were fully conscious that the defendant had withdrawn the earlier two shipping bills and presented fresh two shipping bills and that fact had become known to the plaintiffs on September 6, 1954 i.e. long prior to September 18, 1954 the date on which the vessel left the shors of India. In our judgment, as the export was completed under the two shipping bills delivered to the Customs House on August 23, 1954 the claim of the plaintiffs for payment of duty from the defendants is without any substance and the trial Judge was perfectly justified in dismissing the plaintiffs suit on the preliminary issue. There is no dispute that in view of the exemption notification the defendants were not liable to pay duty in respect of the two consignments dated August 23, 1954. In view of this undisputed position on the facts available on record, the judgment under challenge requires no interference and the appeal must fail. 10. There is no dispute that in view of the exemption notification the defendants were not liable to pay duty in respect of the two consignments dated August 23, 1954. In view of this undisputed position on the facts available on record, the judgment under challenge requires no interference and the appeal must fail. 10. Accordingly, the appeal is dismissed with costs. As two Advocates have appeared at the hearing of the appeal on behalf of the respondent, the second Advocate would be entitled to his maximum fees under sub-rule (3) of Rule 606 of the High Court of Judicature at Bombay on the original side. The respondent would be entitled to appropriate towards costs the sum of Rs. 500/- deposited by the appellants Advocates as security at the time of presentation of the appeal. -----