JUDGMENT

S. B. MAJMUDAR, J.:-

The Principal Appraiser (Exports), Collectorate of Customs and Central Excise, Customs House, Cochin-3, the Appellate Collector of Customs, Customs and Central Excise House, Madras and the Union of India represented by the Joint Secretary, Ministry of Finance, Department of Revenue and Insurance, New Delhi have preferred this appeal by special leave against the judgment and order of a Division Bench of the Kerala High Court allowing writ petition of the respondent on 24th November 1972. A fewrelevant facts to highlight the grievance of the appellants are required to be mentioned at the outset.

2. Respondent at the relvant time carried on the business of export of coir yarn and ropes at Calicut in the State of Kerala. In July 1966 the respondent presented before the customs authorities at the port of Cochin, shipping bills for three lots of coir yam booked to be shipped on board the S. S. Neils Maersk. The said shipping bills were for getting entry outwards for the said ship destined for the port of Basrah. The duty payable on the export of the said goods at the then prevailing rate was assessed by the customs authorities. The same was paid by the respondent. The "entry outwards" as envisaged under Section 39 of the Customs Act, 1962 (hereinafter referred to as the Act) was issued and an order permitting the clearance of the loading of the goods for exports as envisaged under Section 51 of the Act was made.

3. For want of space in the said vessel the goods were "shut out." The respondent, however, secured necessary space for exporting these goods by another vessel named S. S. PXilas. Respondent accordingly submitted fresh shipping bills on 9th August 1966 for entry outwards for S. S. PXilas. On the basis of a petition made on behalf of the respondent the earlier shipping bills were allowed to be amended enabling the respondent to ship the goods on board the said vessel S. S. PXilas.

4. In the menwhile and before the necessary amendment of the shipping bills the export duty payable on coir yarn was enhanced from 10% to 25%. The first appellant accordingly demanded from the respondent an additional amount of Rs. 4,444.96. The respondent paid the same under protest.

5. Thereafter the respondent by his letter dated 21st May 1968/6th July 1968 applied for refund of the aforesaid amount as per Section 27 of the Act. On 13th June 1968 the Assistant Collector (Customs), Cochin rejected the application of the respondent on the ground that the total amount of export duty paid by respondent did not exceed the duty leviable on the goods to be exported at the relevant date of issuing the entry outwards for the ship S. S. PXilas. Respondent unsuccessfully carried the matter in appeal before the Appellate Collector of Customs, Madras who dismisssed the appeal on 16th September 1969. Thereafter the respondent moved the Commissioner of Revision Applications to the Government of India, Ministry of Finance, New Delhi under Section 131 of the Act by filing three applications. The Commissioner rejected all the three applications.

6. Under these circumstances the respondent moved the High Court of Kerala at Ernakulam in the aforesaid writ petition. A Division Bench of the High Court allowed the writ petition by its order dated 30th July 1975 and directed the appellant No. 1 to refund the amount of Rs. 4,444,96 to the respondent. It is this order of the High Court which is challenged by the appellants in this appeal.

7. Learned counsel for the appellants vehemently submitted that on a conjoint reading of Sections 16(1) with the proviso, 17(1) and 50 of the Act it has to be held that the proper export duty chargeable on any goods sought to be exported would be duty payable on the date when entry outwards for the concerned vessel through which the goods are exported was issued. That in the present case the goods in question got exported through vessel S. S. PXilas and entry outwards for the said vessel was issued only on 9th Augus