N. H. BHATT, J. ( 1 ) THIS is a petition by an entrepreneur who because of the unreasonable attitude adopted by the public authorities has come to suffer considerably and perhaps beyond repairs. ( 2 ) IN order to know how the above remark is justified we would set out the facts that would show the extremely unreasonable and untenable stand adopted by the Customs authorities. The petitioner had established a factory to manufacture cloth for the purpose of export. It was in the Kandla Free Trade Zone (hereinafter referred to as KFTZ for brevitys sake ). The policy of the Government is to allow import of duty-free goods to such people for the purpose of manufacturing goods solely for the purpose of export. The petitioner had started his factory had imported goods time and again. In the year 1969 when his factory was going on he had imported two consignments one of 39 cases and another of 9 cases which were landed at Bombay. They were to be transhipped to Kandla and road transport was permitted. When the goods reached Kandla the authorities found that the goods did not conform to the bill of entry in certain respects A certificate about the safe arrival of the goods was also not issued with the result that the Bombay Customs Authorities initiated proceedings for levy of custom duty on those con signments and intimated the Assistant Collector of Customs Kandla and the Development Commissioner KFTZ not only to retain those goods but all goods whatsoever whether manufactured or unmanufactured lying in the factory of the petitioner. A notice was issued by the Collector of Customs in respect of attachment of those 39 cases of two consignments. The matter had gone to the Bombay High Court where a compromise was entered into by the petitioner on the one hand and the Customs authorities on the other. As per those consent terms the goods of those 39 cases were to be auctioned by the Customs authorities within six weeks and the sale proceeds were to be retained by them towards their claim for custom duty and/or the remainder the petitioner was to furnish bank guarantee within nine months thereafter. Now it so happened that instead of six weeks these public authorities at Bombay took six months time to auction those goods. Now it so happened that instead of six weeks these public authorities at Bombay took six months time to auction those goods. The petitioners grievance is that because of the belated auction sale he had suffered heavy loss. We are not much concerned with it because the petitioner will deal with the same separately. But he has made a clear statement before us that in final analysis whatever duty is to be paid by him he will pay. ( 3 ) NOW on this side the petitioners manufactured goods and other raw materials were retained by the Customs Authorities. They did not allow him to export those goods and or manufacture the goods for export and this situation continued. Mr. Shah initially contended that there was no retention i. e. seizure of goods but when his attention was drawn to pp. 46 79 and 97 etc. he did not pursue his contention. Ultimately the petitioner was given a notice by the authorities under said. 111 (o) as to why these goods which were not expired within six months of the entry be not confiscated. As a matter of fact there was no notification of the Government upto 25/05/1968 laying down any period for export but the petitioner was told that whatever goods that were lying in his factory either in the manufactured or unmanufactured condition were liable to confiscation under the said Section. The petitioner contested the claim saying that he could not export because these goods were put under seizure by the Customs Authorities at KFTZ as per requisition of the Bombay Customs authorities. His contention fell on deaf years and the; order of confiscation came to be passed and unfortunately for this petitioner even the Central Board of Revenue confirmed that order with this relaxation that some more time was given to him to export those goods. However the export could not be done because all the while the authorities of the Customs Department sat tight on those goods as per the requisition of the Collector of Customs Bombay. The petitioner was on the horns of a dilemma. On the one side the petitioner could not manufacture the goods because of this seizure and on the other because of this act of the authorities he could not export the manufactured goods and could not manufacture the other goods for the purpose of export. The petitioner was on the horns of a dilemma. On the one side the petitioner could not manufacture the goods because of this seizure and on the other because of this act of the authorities he could not export the manufactured goods and could not manufacture the other goods for the purpose of export. There was held against him the bayonet of confiscation This has given rise to this petition in which the petitioner has challenged the order of confiscation confirmed by the Central Board of Revenue. ( 4 ) THE narration of facts above by itself is sufficient to show that the order of confiscation is ex facie bad and untenable. Any willful non compliance with the cent per cent export obligation would certainly give rise to the liability to incur confiscation on under sec. 111 (o) of the Act. But where the situation is created by the very Customs authorities in which a citizen is not able to carry out that export obligation it cannot be said by any stretch of imagination that there is willful default on the-part of the would-be exporter of the goods. If there is no willful default. there cannot be any confiscation. Here curiously enough the petitioner was completely helpless. By the act of the officers of the Customs Department he was prevented from manufacturing and/or exporting the goods and that consequential liability of the petitioner to export the goods has been now made a ground of his being visited with the order of confiscation. Two things cannot stand together and the only legal outcome would be that the order of confiscation of the petitioner goods is ex facie bad and the order is absolutely unsustainable. We therefore quash the orders at annexures K and L. Right from 1968 to 1985 much water has flown beneath the bridge and the situation has totally changed. In the period of sixteen years the goods must have qualitatively deteriorated considerably and must have become totally unfit for export. It is truism to state that the Export Board would never permit export of such stale goods. So the only course left open to the Customs authorities is to release these goods for the domestic use of course by charging the requisite duty as it may be livable which the petitioner is willing to pay. It is truism to state that the Export Board would never permit export of such stale goods. So the only course left open to the Customs authorities is to release these goods for the domestic use of course by charging the requisite duty as it may be livable which the petitioner is willing to pay. We therefore direct the authorities as the inevitable outcome of the unreasonable stand taken all these years that they shall not now insist on the expert obligation undertaken by this petitioner and as a consequence permit the petitioner to utilise these goods for the domestic market subject. of course to his paying the reasonable duty. Rule is accordingly made absolute with no order as to costs. (ATP) rule made absolute. .