( 1 ) THIS is a first appeal arising out of a suit brought by the plaintiff-respondent for the recovery of Rs. 8,182/12/- due by the appellant on account of customs duties paid in advance for the export of goods out of India. It appears that the plaintiff dealt in mustard oil and wanted to export 1870 maunds of mustard oil to East Pakistan via "katihar. Under the rules a permit for export is issued only after a person desirous of exporting goods deposits the export duty payable on the commodity sought to be exported in advance. The plaintiff deposited Rs. 10,990/14/- at purnea in advance, as this was the amount of duty which would have been payable on 1870 maunds of mustard oil sought to be transported. The plaintiff then tried to get wagons for transport of oil but only two wagons could with difficulty be had and he was able to export only 513 maunds and 6 seers of mustard oil and after deducting the export duty on this amount of oil a sum of Rs. 8,182/12/- remained in deposit with the defendant-appellant. The plaintiff then sent letters to the officers of the Customs Department for the repayment of this excess amount. There was a protracted correspondence till ultimately the plaintiff was told that the duty could not be refunded in view of the provisions of Section 40 of the Sea Customs Act. The plaintiff then gave the statutory notice of two months to the Union of India and filed the suit which has given rise to this appeal for recovery of Rs. 8,182/12/ -.

( 2 ) THE suit was contested by the defendant on three main grounds. Firstly, it was alleged that the cause of action arose within the jurisdiction of Purnea Court and the Court below had no jurisdiction to entertain the suit. The second contention was that the suit was barred by time and the third and last contention was that the duty was not refundable in view of the provisions of section 40 of the Sea Customs Act.

( 3 ) THE lower Court found in favour of the plaintiff on all these three points and decreed the claim. The defendant has now come up in appeal.

( 4 ) IN order to decide whether the lower Court had jurisdiction to entertain the suit, the nature of the claim will have to be examined. It is not disputed that the amount sought to be recovered was deposited at Purnea and the plaintiff asked for the refund of the money and filed a suit in lucknow Court. The plaintiffs main reliance is on the general principle of law that a debtor must seek his- creditor. The contention of the defendant, on the other hand, is that there was no relationship of a debtor and creditor in the present case and as such the suit could not be instituted in Lucknow. As pointed out above, the nature of the claim will have to be examined-into in order to arrive at a correct finding on the plea of jurisdiction.

( 5 ) THE facts of the case are practically admitted. The plaintiff was desirous of exporting 1870 maunds of mustard oil to East Pakistan and the deposit of Rs. 10990/14/- was made towards the payment of export duties on this oil. It is also admitted that only 513 maunds and six seers of oil could in fact be exported for reasons beyond the control of the plaintiff. Under the Indian Tariff act read with the Land Customs Act and the Sea Customs Act an export duty be comes leviable when goods are exported. There can be no levy of duty on goods which are not exported or which could not be exported. If for the sake of convenience the Government has framed ruler, for deposit or duty in advance of the export, the appropriation of duty takes place only when there is an actual export. If no export is made, there is no appropriation of the duty which is deposited in advance. It has been contended on behalf of the appell and that the duty is not refundable. This de posit evidently was not made towards any fee payable on account of a licence or permit. It was clearly the export duty which was deposited in advance. The amount of duty which has been deposited but not appropriated wo