Bombay High Court
Collector Of Customs, Bombay vs Ramchand Sobhraj Wadhwani on 19 August, 1955
Author: Chief Justice
Bench: Chief Justice
JUDGMENT Chagla, C.J.
1. The appeal raises a very simple and short question, but the matter has been unnecessarily complicated by various technical objections that have been taken to the maintainability of the petition from which this appeal arises.
2. The petitioner imported fountain pens which were gold plated and they were assessed to duty under item 61(8) of the First Schedule to the Indian Customs Tariff at the rate of 78 3/4 per cent. His contention was that in law the articles imported fell under item 45(3) and he was liable to pay duty only at the rate of 30 per cent. The Assistant Collector having assessed them under item 61(8) the petitioner appealed to the Collector of Customs and the Collector of Customs dismissed the appeal upholding the view taken by the Assistant Collector. Mr. Justice Tendolkar has taken the view on a plain construction of the two items the only possible view that any Court can take, that is, that the case of the petitioner falls under item 45(3) and not under item 61(8) and, therefore he issued a mandamus against the Collector who had passed the above order, who happened to be B. N. Banerji directing him to release the articles of the petitioner on his paying duty at the rate of 30 per cent. The respondent has now come in appeal, and the first contention strenuously urged by the Advocate General is that the petitioner's case must fail because he has not exhausted the legal remedy which was available to him, and consistently with the well settled principles of law no relief can be granted either on a mandamus or on a certiorari to a party to whom adequate specific and alternative legal remedy is available.
3. It is pointed out that under the Sea Customs Act the petitioner having appealed to the Collector under section 188 he had a right to go in revision to the Central Government under section 191 and as he has not done so there is a clear objection to the maintainability of the petition in limine and the petition must be dismissed. There is considerable force in the contention put forward by the Advocate General. He has drawn our attention to various decisions of this Court where dealing with the Evacuee Property Act we took the view that where a revision lay to the Custodian General it was not open to a party to come here complaining of the order made by the Custodian, and the Advocate General says that the position here is identical and we must follow the line of decisions bearing on this point. We wish to make it clear that we adhere to the view that we have consistently taken in this Court that it is the duty of a party first to avail himself of the normal remedy which the law permits him. A petition under Article 226 or Article 227 is an exceptional remedy. If the law lays down a procedure and the law provides a remedy and the law makes it possible for a party to get relief through the ordinary channel, this Court will not permit a party to circumvent the ordinary procedure laid down by law and approach this Court for a special remedy and an order which the Court makes in its discretion. We wish to make it clear also that in this case we do not propose to dismiss the petition because it seems to us that this is an exceptional case and we are permitting the petitioner to obtain this relief strictly on the special facts of this case.
4. In the first place, the learned Judge before whom the petition was presented took the view that in this particular case the question of alternative adequate relief did not arise. The learned Judge felt that the order made by the Assistant Collector was without jurisdiction and in such a case it was not necessary for the petitioner to exhaust the rights given to him by way of an appeal or revision. With respect to the learned Judge, we do not agree that the order made by the Assistant Collector was without jurisdiction in the sense in which he seems to imply. The Assistant Collector had to make the order under the Sea Customs Act. He had to assess the goods. The fact that he wrongly assessed the goods or took the view that they fell under one item rather than another, does not mean that his decision was without jurisdiction. With respect, the expression 'without jurisdiction' would be out of place because the decision of the Assistant Collector is not a judicial or quasi-judicial decision. It is an administrative decision, and in a mandamus what the Court has to consider is not the question of jurisdiction but whether an officer acts contrary to the clear duty imposed upon him by statute. Therefore in every case of mandamus there must be prima facie a submission by the petitioner that the officer against whom the mandamus is sought has acted contrary to statute. If the Learned Judge means by that that he acted without jurisdiction then it would follow that in no case of mandamus would it be incumbent upon the petitioner to exhaust his legal remedy. With respect, we cannot subscribe to that view, but whether the learned Judge was right or wrong in the view that he took he did permit the petitioner to proceed with the merits of the matter and decide the petition on merits. Therefore the petitioner having succeeded and having obtained a writ, the Collector now comes before us in appeal and raises the same contention. The position is that in the order that the Collector made it is stated that the revision application to the Central Government must be preferred within 180 days. That time has passed and strictly there is no right of revision left in the petitioner. Therefore if we were to act in accordance with the decisions which we have given and the view that we have taken and accept the contention of the Advocate General, the result would be that the petition will have to be dismissed and the petitioner will be without any remedy at all. The primary duty of the Court under Article 226 or Article 227 is to do justice and if insistence upon procedure or upon technicality results in miscarriage of justice, the court will refuse to be a party to insisting upon a procedural matter being complied with.
5. Mr. Keshavdas has also drawn our attention to a judgment of the Supreme Court reported in 'Himmatlal v. State of M.P. , where according to Mr. Keshavdas the Supreme Court has taken the view that if a party complains of an illegal imposition or exaction by way of a tax, that constitutes an infringement of his fundamental right of carrying on business under Article 19(1)(g) of the Constitution, and in such a case it is not incumbent upon the party to exhaust all his legal remedies before he can approach the Court. In our opinion it is not necessary on this petition to consider the more important and the larger question whether when there is a complaint as to the infringement of a fundamental right it is necessary for the party so complaining to exhaust his other legal remedies before he can approach this Court under Article 226 or Article 227. Therefore it is by reason of these exceptional circumstances that we have decided to go into the merits of the matter and not interfere with the view taken by Mr. Justice Tendolkar that the preliminary objection had no substance.
6. There is another preliminary objection which might also be disposed of. The petition was directed against Mr. B. N. Banerji who was the Collector of Customs who made the order challenged. The Advocate General says that Mr. Banerji has ceased to be the Collector, that the new Collector has not been brought on the record, and therefore the petition must fail. We are really surprised that such an objection should be taken on behalf of the Customs Authorities. When Mr. Justice Tendolkar made the order on the 5th July, 1955 granting the writ, Mr. Banerji had already ceased to be the Collector and it was the duty of counsel appearing for the respondent to point out to Mr. Justice Tendolkar that Mr. Banerji was no longer the Collector of Customs, that some other Collector had come on the scene, that the petition should be formally amended, and the writ should be issued not against Mr. Banerji but against his successor. Not having pointed out that to Mr. Justice Tendolkar, here for the first time in the Court of Appeal an objection is taken that the proper respondent is not before the Appeal Court. Well, all that we can say is that this court will not permit a petition to fail on a highly technical ground which does no credit to the party who takes it. We will therefore direct that the petition should be formally amended by bringing Mr. Venkateswaran also on the record as the second respondent and the order will be directed against Mr. Venkateswaran and the memo of appeal will also be amended by adding a second appellant and Mr. Venkateswaran will be second appellant.
7. Having disposed of these preliminary objections we now turn to the merits which should not take us a very long time. The controversy is whether the fountain pen, a sample of which is before us, which is a Sheaffers pen with a gold top, falls under item 45(3) or 61(8). Perhaps a little history would not be out of place in order to appreciate the exact meaning of item 45(3). Item 45(3) was introduced into this schedule by Act I of 1949 and it is a matter of historical importance of which we can take judicial notice that this was the result of a convention arrived at Geneva to which India was a party for reduction of duties with regard to the import of certain goods. Before item 45(3) was enacted the relevant item with regard to stationery was item 45(a) which was in these terms :
"Article made of paper and papier mache : Stationery not otherwise specified, including drawing and copy books, labels, advertising circulars, sheet or card almanacs and calendars, Christmas, Easter and other cards, including cards in booklet forms; including also waste paper".
8. The rate of duty for these articles was 39-3/8 per cent. By reason of this convention at Geneva under item 45(3), which specifically dealt with fountain pens complete, the duty was reduced from 39-3/8 per cent to 30 per cent. The importance of item 45(3) can be realised in that it dealt with a specific article of stationery, viz., a fountain pen, and in order that an article should fall under this item it must not only be a complete fountain pen; in other words, a part or parts of fountain pens would not fall under this item. Item 61(8) falls under section 14 which is headed "Real Pearls Precious Stones, Precious Metals and Wares of those materials; Coin (specie)", and the description of item 61(8) is : "Articles other than cutlery and surgical instruments, plated with gold or silver". The contention of the Customs Authorities is that this particular fountain pen is an article plated with gold because it has a top which is of gold or gold plate, and therefore, it satisfies the definition of the article. If item 61(8) stood by itself it might have been possible to argue that a fountain pen fell under this entry, although we doubt whether by reason of the presence of item 45 even that argument could have been put forward. But when we have before us an entry which deals with a specific article and which is intended to apply to a specific article, it is difficult to understand by what canon of constructions can it be suggested that the specific article should not be dealt with by the specific entry which deals with it but it should be dealt with by a general item of the nature of item 61(8). There is no suggestion that item 61(8) was ever intended to deal with articles of stationery. The Advocate General says that when you have a fountain pen, part of which is gold or gold plated, then it cannot fall under Item 45(3) but more properly it falls under item 61(8). If the intention of the Legislature was not to include all fountain pens complete under item 45(3), then the simplest thing was to provide for the exception in that item itself. The Legislature could have provided, "Fountain pens complete other than those having gold top or having a silver top". But when the Legislature has not provided any exception to the item all articles which legitimately fall under that item must be assessed according to the rate of duty applicable to some other item which deals with a general class of articles. The simple question that we have to answer and there can only be one answer to that question - is what is the article with which we are concerned and which is the subject matter of the petition, and even the Advocate General was compelled to give that answer because there is no other answer possible, that we are dealing with a fountain pen complete. It is irrelevant to go on to say that the fountain pen has a gold top. You might as well say that the fountain pen is black or red or yellow and therefore it does not come under item 45(3). In our opinion, therefore, the only possible view that we can take of the construction of item 45(3) and item 61(8) is that for the articles in question item 45(3) applies and not item 61(8).
9. An ingenious attempt was made by the Advocate General to bring the case under section 21. In the first place, there is no suggestion anywhere in the record that the Customs Authorities requisitioned the assistance of section 21 in assessing these fountain pens to duty. The judgment of the Collector is clear and he holds that the articles in question are assessable under item 61(8). But even on merit it is difficult to understand how section 21 can possibly have application to this case. As the marginal note correctly points out, it deals with goods partially composed of dutiable articles. Nobody has ever suggested that a fountain pen is a composite article consisting of different articles, some of them dutiable and some of them not dutiable. A fountain pen is one article which can only fall either under item 45(3) or item 61(8). Section 21 applies to entirely different set of facts which are not present before us.
10. Therefore, in our opinion, the learned Judge was right in the view that he took. The result is' that the appeal fails and must be dismissed with costs.