Y. R. MEENA, J. ( 1 ) BY this petition, petitioner has prayed that respondents be directed to permit the petitioner to re-export his two containers to their origin, bearing Nos. CRXU for 4638054, Seal No. 122200, Seal No. 20673, AI-81, containing one 40 ft. STD. Contr. stc. 81 pkgs. (43 cases and 38 pallets), another bearing No. POCU, 1197581, Seal No. B-303 669 Seal No. 122163, J-157, containing one 40 ft. STD. Contr. STC. 57 pallets and bearings lying at Calcutta Port originally despatched to M/s. Nitu Enterprises, Kamladi, Kathmandu of Nepal. ( 2 ) PETITIONER further prayed that purported order of seizure of the said containers by respondents at show-cause notice dated 14. 8. 98 be quashed. ( 3 ) THE case of the petitioner that M/s. Nitu Enterprises of Kamladi, Kathmandu, Nepal, placed the order to the Kumar Trading Co. for purchase of the ball-bearings in question. They were shipped from Dubai to Nepal, vis India. ( 4 ) THE particulars of the said consignments are as under :-"invoice No. KTC/97/148 dated 15. 6. 97, Invoice Value U. S. dollars 32, 980, Bill of Lading No. 27430549 dated 13. 6. 97; Container No. CRXU. 4638054, Destination-Nepal, Port of Loading-Jebal Ali, U. A. E. Port; ii. Invoice No. KTC/97/149 dated 15. 6. 97, Invoice Value US. Dollars 34,847; Bill of lading No. 27430467 dated 13. 6. 97, Container No. POCU. 119581; Destination-Nepal, Port of Loading-Jebel Ali, U. A. E. Port. " ( 5 ) THESE consignments were shipped for M/s. Nitu Enterprises, through Cargo, Calcutta Transit to Nepal. The contract was entered into between the Kumar Trading Co. Ltd. and M/s. Nitu Enterprises in June, 1997. In pursuance of the contract, the petitioners received letter of credit No. BNR. /t/32/629 for US Dollars 3100 and BNR/t/32/630 for US Dollars 3500 from the said M/s. Nitu Enterprises of Nepal. ( 6 ) AFTER the contract with M/s. Nitu Enterprises but before shipment of goods M/s. Nitu Enterprises has requested the petitioner to ship out ten times quantity of goods of the value of letter of credit, with a promise that the said M/s. Nitu Enterprises will send the revised letter, of credit to the petitioner, for enhance quantity of goods. ( 7 ) AFTER enhance quantity of goods were shipped and goods wherein transit, M/s. Nitu Enterprises started bargaining to reduce the price of the goods and pressing the petitioner to sell those goods on unjustified price. The goods were reached at Calcutta Port, one clearing agent on behalf of the M/s. Nitu Enterprises has submitted the letters of credit for both the consignments but ultimately they refused to take the delivery of those consignments. ( 8 ) AS the consideration of goods in question were not paid to the petitioner, it was a conditional sale and the petitioner has given only 3rd original copies of Bill of Lading to M/s. Nitu Enterprises. M/s. Nitu Enterprises back out from the promise and refused to take delivery of the containers in July, 1998, the petitioner requested M/s. Nitu Enterprises to return 3rd copy of original bill of lading. M/s. Nitu Enterprises has also informed the petitioner that the said copy had been surrendered to the Customs Dept. so that could not be returned to the petitioner. ( 9 ) WHEN M/s. Nitu Enterprises express its inability and back out from its promise and refused to take delivery of containers, the petitioner thereafter, approached the Calcutta Customs Authority for permission to re-ship the said consignments to their original. The petitioners have requested to Customs Authority to take immediate steps for permitting the petitioner for re-shipment of the consignments to Dubai so that the damages and deteriorations to the goods can be saved but instead of permitting the petitioners, the goods were seized and a show-cause notice has been issued, as why the goods should not be confiscated for the reason that the containers are unauthorized import, for the purpose of deflection and consumption in India. Therefore, why they should not be confiscated? ( 10 ) COUNSEL for the petitioner submits that the petitioner entered into the agreement with M/s. Nitu enterprises for supply of ball-bearing and while the goods were being shipped on the request of M/s. Nitu Enterprises, the goods were shipped ten times relying on the assurance of the M/s. Nitu Enterprises that they will send the revised letter, of credit for the enhance quantity of goods. When the goods were in transit, M/s. Nitu Enterprises tried to bargain and take the advantage of facts and circumstances and quoted the unreasonable price for which the goods could not be sold and ultimately it backed out from the promise made to petitioner. He further submits that there is no fraud on the part of the petitioners, there was no intention to send the goods for the purpose of consumption in India. The petitioner has been cheated by M/s. Nitu Enterprises by giving false assurance to purchase ten times of goods of original agreement and that it will send the revised L/c before ship will reach to Calcutta Port. ( 11 ) THERE is no evidence in support that the goods was sent from Dubai to India for consumption in India. While the goods was not imported for consumption in India, there is no question of seizure of such goods while they were on transit to Nepal. On the one hand, the petitioner has been cheated by M/s. Nitu Enterprises and on the other hand, respondents have seized the goods of the petitioners and not permitting the petitioner to reship its consignments to Dubai. ( 12 ) THE goods are lying at Calcutta Port for the last one and a half years, and petitioner has to pay the demurrage charges to Port for that period, goods are lying at port for on fault on his part. There is no evidence that petitioner is in any way committed any fraud or in collusion with M/s. Nitu Enterprises sent the goods for consumption in India. No evidence has been brought on record that the goods were imported for consumption in India. On the contrary, there is sufficient material on record to show that petitioner entered into agreement with M/s. Nitu Enterprises in good faith. The petitioner has already been cheated by M/s. Nitu Enterprises and he has also to pay the port charges for the goods lying at Calcutta Port, why he should be punished further by delay in permitting to take its goods back. ( 13 ) COUNSEL for the petitioner further submits that as the show-cause notice is without jurisdiction and there is no material to justify that show cause notice be quashed and the respondents be directed to permit the petitioner for reshipment of both consignments to Dubai. ( 13 ) COUNSEL for the petitioner further submits that as the show-cause notice is without jurisdiction and there is no material to justify that show cause notice be quashed and the respondents be directed to permit the petitioner for reshipment of both consignments to Dubai. ( 14 ) COUNSEL for the respondents submits that it is only a show-cause notice, therefore, normally this court should not interfere at this stage. He further submits that after examining the various parties, it appears that the goods were imported for consumption in India and the letters of credit issued for US dollars 3100 and US dollars 3500 but letters of credit submitted to Custom Authority to the tune of US dollars 31000 and US dollars 35000, thus the declaration was false and therefore, goods are liable to be confiscated. ( 15 ) IT is true that normally at show-cause notice stage, court should not interfere, but in some cases, in the interest of justice, court should interfere even at notice stage. The similar question was considered by this court in India Cardboard Industries Ltd. v. Collector of Central Excise, 1992 (58), ELT. 508 (Cal. ). In Para-15, this court has given the instance of circumstances in which this court should interfere at the show-cause notice stage, in its jurisdiction under Article 226 of the Constitution. The circumstances reads as under:-1. WHEN the show-cause notice ex-facie or on the basis of the admitted facts does not disclose the offence alleged to be committed; 2. When the show-cause notice is otherwise without jurisdiction; 3. When the show-cause notice suffers from an incurable infirmity; 4. When the show-cause notice is contrary to judicial decisions or decision of the Tribunal; 5. When there is no material justifying the issuance of the show-cause notice. ( 16 ) TO consider whether this notice has been issued without material justifying the issuance of show-cause notice, it is necessary to consider the material placed for consideration by the respondents. Respondent has annexed only copy of the show-cause notice and the allegation that the goods were imported for consumption in India and the goods were ten times from the value of letters of credit originally sent to petitioner. The letters of credit submitted by the clearing agent was US Dollars 31000 and US dollars 35000, therefore, it is an unauthorized import. The letters of credit submitted by the clearing agent was US Dollars 31000 and US dollars 35000, therefore, it is an unauthorized import. They have also referred some parts of the statements recorded of persons referred in show-cause notice to find out whether the ball-bearings were sold to M/s. Nitu Enterprises. ( 17 ) IN show-cause notice under section 124 of the Customs Act, some part of the statements recorded, are referred, one Sri Pronoy Kr. Ghosh admits that they received the jobs of M/s. Nitu Enterprises of Nepal from Arati Shipping Agency and he submitted the original documents of the Customs Transit Declarations of M/s. Nitu Enterprises to Nepal Unit of Customs House, Calcutta under the seal of M/s. United Shipping Corporation, Customs House agent. ( 18 ) SRI Dilip Kr. Mitra, a partner of M/s. United Shipping Corpn. , admits that he entered into an agreement with Sri Pronoy Kr. Ghosh, proprietor of M/s. Prem International to clear the jobs of the letter through his clearing agency with effect from 1. 7. 97 for a period of one year. He further states that he had allowed Sri Pronoy Ghosh of M/s. Prem International to file three customs transit declaration consignments through their firm till date 27. 8. 97 on which one consignment of generator for U. N. D. P. , Nepal had already been cleared while the other two customs transit declarations are yet to be cleared. ( 19 ) SRI Pronoy Ghosh has also admitted that he received the job of clearing customs transit declaration goods of M/s. Nitu Enterprises of Nepal from Arati Shipping Agency at 7, Kabitirtha Sarani, Calcutta. ( 20 ) SRI Supriya Kr. Panja stated that while he was in Hindusthan Shipping Agency, he met at Calcutta two persons, i. e. , Sri Sroban Gupta and Sri P. Agarwal of Katmandu, Nepal, in connection with Customs transit declaration goods that thereafter, he talked to them and got some customs transit declaration jobs through them that as far as he knew they were not actual importers and they collected jobs in Nepal and then through him got the customs transit declarations goods cleared from Calcutta dock. He further stated that he used to pay Sri Biswanath Chakraborty of M/s. Chakraborty Clearing Agency at the rate of Rs. 2500/- per container and Rs. He further stated that he used to pay Sri Biswanath Chakraborty of M/s. Chakraborty Clearing Agency at the rate of Rs. 2500/- per container and Rs. 2000/- per container to Sri Milan Gupta of M/s. Orient Clearing and Forwarding Agency and he had also verbally agreed with Sri Pronoy Ghosh for payment of Rs. 5000/- per container including miscellaneous expenditure. He further stated that Sri Sroban Gupta and Sri P. Agarwal used to stay either in Hotel-Surya at Minto Park or at Hotel-'host' at V. I. P. Road. He further states that documents of two consignments of ball-bearings of M/s. Nitu Enterprises were given by him (Panja), through Sri M. K. Bose who handed over the documents to Sri Pronoy Ghosh (Proprietor of M/s. Prem International), through whom M/s. United Shipping Corporation filed the Customs Transit Declarations. ( 21 ) SRI Milan Gupta is an authorized signatory of M/s. Orient Clearing and Forwarding Agency has stated that Sri Supriya Kr. Panja handed over the papers to them for processing in Customs House. ( 22 ) SRI Biswanath Chakraborty, a proprietor of M/s. Chakraborty Clearing Agency has admitted that he had received 12 Nepal consignments Customs Transit Declaration jobs from Sri Supriya Kr. Panja. ( 23 ) SRI Amal Kanjilal, a partner of M/s. Hindusthan Shipping Agency has admitted that Sri Supriya Panja used to work under him as a jetty of Sircar in his company and during that time he used to look after all the formalities such as documents, processing, port clearance and maintenance of records and during his absence Sri Supriya Panja bringing customs transit declaration jobs and got them cleared by obtain his signature on the blank customs transit declarations copies. ( 24 ) FROM the parts of the statements referred above, I surprised how it can be inferred that M/s. Nitu Enterprises has not placed the order for supply of goods in question. ( 25 ) THE examination referred above of two persons clearly shows that the persons referred above are engaged in profession of Custom clearing agents and some of them has acted on behalf of the M/s. Nitu Enterprises for custom clearing agent. There is an admission to this fact by the persons referred above that how the case of M/s. Nitu Enterprises came for Custom clearing to them and how they acted on behalf of the M/s. Nitu Enterprises for custom clearance. There is an admission to this fact by the persons referred above that how the case of M/s. Nitu Enterprises came for Custom clearing to them and how they acted on behalf of the M/s. Nitu Enterprises for custom clearance. The letters of credit are also submitted by the clearing agent duly authorized by M/s. Nitu Enterprises. The perusal of part of this statement referred in the show-cause notice, clearly shows that none of the persons examined has stated that M/s. Nitu Enterprises has not authorized them for custom clearance nor they have doubted the transaction entered into between M/s. Nitu Enterprises and the petitioner-Kumar Trading, nor the existence of either of them has been doubted. Rather from the part of the statement, it is clear that they have supported the case of the petitioner that M/s. Nitu Enterprises of Nepal has imported the goods in question from Dubai. They were shipped by Kumar Trading and Kumar Trading in no way is in collusion with either of them for import of goods for consumption in India. ( 26 ) THERE is a procedure for goods which are imported in Nepal through India, how those goods will be taken from India to Nepal. Indo-Nepal Treaty provides the procedure for transit the goods from India to Nepal which were imported by Nepal, via India. For that the importer or agent of importer shall submit a custom transit declaration containing the name of the ship name and address of the importer, and description of goods, such as quantity, value of goods, route of transit. The goods entered herein are for Nepal in transit through India and shall not divert and enroute to India or retain in India. The Customs House shall make the examination of the goods to check whether the goods are in accordance with Customs Transit Declarations. It further provides that the goods shall be transported as per clause 5,6,7 and 8 of Memorandum of Import Procedure, which reads as under :-"5 The Customs House shall make a percentage examination of the goods to check whether the goods are in accordance with the custom transit declaration and conform to the import licence-wherever such license is required. Goods for Nepal as covered by the said licence and also in accordance with the customs transit declaration shall be approved for onward transmission. Goods for Nepal as covered by the said licence and also in accordance with the customs transit declaration shall be approved for onward transmission. However, in making such examination, avoidable delays shall be curtailed to the utmost in order to expedite the traffic-in-transit;6 The goods shall be transported from the Customs Port of entry to the border post in closed railway wagons or in pilfer-proof containers (to be provided by the importer) which can be securely locked. The containers or wagons, as the case may be, shall be locked and duly sealed after the above examination, Individual packages in such wagons or containers shall not be sealed except where consumer goods or specialised materials for consumer goods are being transported or where the goods are to go to Nepal by a route where the railway line does not reach up to the last town of the border;7. WHERE goods cannot be transported in closed wagons and have to be transported in open wagons or flats, detailed identifying particular shall be recorded in the Customs Transit declarations;8. 'small' consignments of traffic in transit will be accepted for booking by railway from one of the agreed warehouse leased to Nepal Transit and Warehousing Co. Ltd. provided the minimum load condition as applicable in Indian Railways is satisfied". ( 27 ) EVEN if there is any doubt that goods imported for Nepal, in fact, will be diverted or brought for consumption in India. The Custom Dept. can depute an officer so that the goods can be transported under the supervision of Custom Officer, the court can also direct that the goods imported for Nepal should be transported under the supervision of Custom Officer till they reach to Nepal border. Firstly, there is no evidence to show that the goods were imported for consumption in India, secondly, if there is any doubt regarding the consumption of the goods in India, then any officer can be appointed, under whose supervision the goods can be transported from India to Nepal. Therefore, in absence of any evidence, it cannot be inferred that the goods were imported for consumption in India or there is any possibility that goods in question will be consumed in India, if Custom Dept. remain vigilant. Therefore, in absence of any evidence, it cannot be inferred that the goods were imported for consumption in India or there is any possibility that goods in question will be consumed in India, if Custom Dept. remain vigilant. ( 28 ) THE second reason for seizure has been given that the letters of credit given to the petitioner was to the tune of US dollars 3100 and US dollars 3500 but the letters of credit has been submitted to the department to the tune of US dollars 31000 and US dollars 35000 respectively. ( 29 ) THE case of the petitioner that initially the contract was entered into for supply for ball-bearings for US dollars 3100 and US dollars 3500 but while the goods were being shipped M/s. Nitu Enterprises requested to supply ten times of the quantity agreed upon originally and they will send the revised letters of credit. Under the bonafide belief the petitioner shipped ten times of quantity of goods which was originally agreed upon, but after shipment of the goods M/s. Nitu Enterprises wanted to purchase those goods at a lower rate and ultimately they backed out from the promise. Therefore, the petitioners have no option but to take back the goods. ( 30 ) THERE is no iota of evidence to the effect that petitioner was in collusion with M/s. Nitu Enterprises who imported the goods for consumption of goods in India or for any other purpose. ( 31 ) I fail to understand how the Custom Authority has come to conclusion that the goods were imported, for consumption in India. It is a clear case of cheating by M/s. Nitu Enterprises of Nepal, which placed the order for a particular quantity and while the goods was being shipped, they requested for supply ten times quantity of the goods originally agreed by both the parties, and then M/s. Nitu Enterprises backed out from its promise. In what way, the petitioners are responsible for the act of M/s. Nitu Enterprises. In such case, how the goods of petitioners can be seized or confiscated. The petitioners have not furnished any false declaration with the Customs House, if some mischief and false statement are given by the M/s. Nitu Enterprises or its agent to Customs Authority, why the petitioner should be punished. ( 32 ) IN fact, this is a case of conditional sale. The petitioners have not furnished any false declaration with the Customs House, if some mischief and false statement are given by the M/s. Nitu Enterprises or its agent to Customs Authority, why the petitioner should be punished. ( 32 ) IN fact, this is a case of conditional sale. It was agreed upon that M/s. Nitu Enterprises shall pay the consideration for sale at the time of goods reached to Calcutta port, but M/s. Nitu Enterprises backed out from promise. Therefore, the ownership of goods shall remain with the petitioners till the payment of the entire consideration of the goods is paid. It is also pertinent to note that only 3rd copy of bill of lading has been given to M/s. Nitu Enterprises, the other copies of bill of lading are not given to M/s. Nitu Enterprises, so that it could not get possession of the goods, without payment of the whole consideration to petitioners. ( 33 ) THE counsel for the respondents also failed to show me as what extra gain petitioner will have by supply more quantity of goods to M/s. Nitu Enterprises than the quantity agreed upon initially. The petitioners will get the price of the goods which they supply, if instead of the goods value US dollars 31000 and US dollars 35000, the order for supplying goods could be for ten times even at the time of original agreement. There is no bar in supplying of more quantity of goods to Nepal party. When there is no extra gain to the petitioners by supplying more quantity, except their normal business profit, how any malafides can be inferred on the part of the petitioners. ( 34 ) THE goods were not imported for India, how those goods are subjected to any customs duty. The goods were only on transit. Even from the statements recorded by the Custom Dept. It is made clear that the goods were imported by M/s. Nitu Enterprises, Nepal, clearing agents have acted on the request of M/s. Nitu Enterprises of Nepal. ( 35 ) CERTIFICATES have been issued by the Income Tax Dept. of Nepal, Sales Tax Dept. that M/s. Nitu Enterprises is an income tax payee firm and also a registered sales tax assessee. Rastriya Vanijya Bank has also issued the certificate to the fact that they have established the L. C. No. BNR/t/32/629 dated 8. 6. ( 35 ) CERTIFICATES have been issued by the Income Tax Dept. of Nepal, Sales Tax Dept. that M/s. Nitu Enterprises is an income tax payee firm and also a registered sales tax assessee. Rastriya Vanijya Bank has also issued the certificate to the fact that they have established the L. C. No. BNR/t/32/629 dated 8. 6. 97 for US dollars 31000 and the LC No. BNR/t/32/630 dated 8. 6. 97 for US dollars 35000. ( 36 ) FROM the above referred material, I find that M/s. Nitu Enterprises is an existing firm in Nepal. It has placed order, for supply of some quantity of ball-bearings, to the petitioners-Kumar Trading Co. of Dubai, before the goods were shipped, there was a request from M/s. Nitu Enterprises that supply ten times quantity of goods than the quantity in the original agreement and they will send the revised letters of credit for both the consignments. After shipment M/s. Nitu Enterprises had backed out from the promise, and wrote to Kumar Trading Co. that they had no intention to clear the containers in question lying at Calcutta port. A certificate has also been issued stating therein that they have no capacity and intention to take delivery of the containers in question and they also waived their rights to those containers. When M/s. Nitu Enterprises finally backed out from the promise and contract the petitioners have no option but to take back their goods. Therefore, petitioners prayed for re-export of goods to Dubai, instead of permitting the petitioner to take back the goods, a show-cause notice has been issued as why the goods should not be confiscated. ( 37 ) IT is pertinent to note that A. O. simply has annexed the show-cause notice not even single document has been annexed in support of its case, that goods were imported for consumption in India nor they have produced any evidence that there was no contract between M/s. Nitu Enterprises and petitioners nor there is any evidence to show that there is any fraud on the part of the petitioner. The petitioner has not submitted any false documents. ( 38 ) THE petitioner has been cheated by M/s. Nitu Enterprises and has also to pay the port charges for the period for which the goods are lying at Calcutta port. The petitioner has not submitted any false documents. ( 38 ) THE petitioner has been cheated by M/s. Nitu Enterprises and has also to pay the port charges for the period for which the goods are lying at Calcutta port. Further delay, in permitting the petitioner to take back those goods to Dubai, will be made him further liable for port charges as the goods was seized as back as in August, 1997. In view of these facts, the permission should be given the petitioner to re-export those goods to Dubai immediately. ( 39 ) IN the result, the order of the seizure of the goods set aside and the show-cause notice dated 14. 8. 98 is quashed. Respondents are directed to permit the petitioner to re-export in the aforesaid two consignments to their origin-Dubai. Petition allowed.