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Bombay Business House Vs. S. Venkatesan - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtMumbai High Court
Decided On
Case NumberO.C.J. Appeal No. 90 of 1956 : Miscellaneous No. 115 of 1956
Judge
Reported in(1958)60BOMLR1058
AppellantBombay Business House
RespondentS. Venkatesan
DispositionAppeal dismissed
Excerpt:
.....the primary purpose for which they, were manufactured must be that they should serve as water pump bearings, and the customs authority says that he is satisfied that these bearings were not intended primarily to serve as water pump bearings, they could be used for half a dozen things, and inasmuch as they can be used for half a dozen things, they are general ordinary ball bearings and not water pump bearings. how can it possibly be said that this view which is taken by the customs authority is so manifestly absurd or erroneous that this court cannot permit that view to stand on the record, and how could it possibly be said that in taking this view and confiscating the goods of the petitioners the deputy collector has acted contrary to the mandate of the legislature and that he has..........from a japanese firm certain bearings which were described in the indent as motor vehicle water pump bearings, and a letter of credit also was opened through the mercantile bank of india and in the intimation given to the manager the goods in respect of which the letter of credit was opened were also described as motor vehicle water pump bearings. the appellants received a consignment of 6,200 pieces out of the goods indented and these goods were cleared by the customs authorities. a further consignment of 26,800 pieces arrived on january 15, 1956. the petitioners filled in the necessary bill of entry. but the view taken by the assistant collector of customs, which view was communicated to the appellants, was that these goods had been imported in contravention of the import trade.....
Judgment:

M.C. Chagla, C.J.

1. This is an appeal from a judgment of Mr. Justice Section T. Desai by which he dismissed a petition filed challenging an order passed by the Deputy Collector of Customs confiscating certain goods imported by the petitioners as having been imported contrary to law and, therefore, liable to be confiscated. The narrow question that we have to consider in this appeal is whether the decision of the Customs Authority that the goods imported by the petitioners did not fall within the ambit of the import license issued to them is a decision which can be challenged by a petition, and if it can be challenged, whether a successful challenge has been made.

2. Now, the facts briefly are that the import license was issued to the petitioners on July 18, 1955, and the license was for importing motor vehicle parts, and the description of these parts allowed to be imported had to be gathered from the serial numbers mentioned in the Import Trade Control Policy Book, the serial numbers being 293, 295 and 297 of Part IV. The license also indicated the limit of Rs. 90,666 within which the goods permitted to be imported had to be imported and the license also stated that the license will be subject to the conditions in force relating to the goods covered by the license, as described in the relevant Import Trade Control Policy Book, or any amendment thereof made upto and including the date of issue of the license, unless otherwise specified. Pursuant to this license the petitioners indented from a Japanese firm certain bearings which were described in the indent as motor vehicle water pump bearings, and a letter of credit also was opened through the Mercantile Bank of India and in the intimation given to the manager the goods in respect of which the letter of credit was opened were also described as motor vehicle water pump bearings. The appellants received a consignment of 6,200 pieces out of the goods indented and these goods were cleared by the Customs Authorities. A further consignment of 26,800 pieces arrived on January 15, 1956. The petitioners filled in the necessary bill of entry. But the view taken by the Assistant Collector of Customs, which view was communicated to the appellants, was that these goods had been imported in contravention of the Import Trade Control Regulations inasmuch as the goods exceeded the available quota of 75 per cent, of the unutilized value of the import license. After that there was some correspondence between the petitioners and the Customs Authorities, with which we are not concerned, and ultimately the impugned order was passed on March 27, 1956. The basis of the order was that the bearings imported by the petitioners were not water pump bearings and therefore they did not fall within the ambit of the import license. It is this order which is being challenged.

3. Now, before we deal with the challenge, it is perhaps necessary to restate the jurisdiction of this Court in matters where a party approaches it under Article 226 of the Constitution and desires a writ of mandamus or certiorari to be issued against an authority. If the attempt of the peitioners is to challenge a finding of fact given by the Deputy Collector of Customs that these bearings were not water pump bearings, then it is clear that this Court would have no jurisdiction to sit in judgment as a Court of appeal on a finding of fact given by an authority designated by the law to give the finding. Under the Sea Customs Act it is for the Deputy Collector of Customs to decide whether a particular article contravenes the law with regard to imports, and if a party is aggrieved by that finding, the Sea Customs Act provides a right of appeal under Section 188. But it would be a total misreading of the provisions of Article 226 and the powers of this Court to issue the requisite writs to suggest or to assume that this Court under the guise of entertaining an application under Article 226 can constitute itself into a Court of appeal. That is not the function of Article 226 or the jurisdiction conferred upon this Court under that article. Mr. Mistree has argued that a finding of fact may be so erroneous as to constitute injustice to the subject and if the Court were to refuse to interfere, it would be depriving itself of the wide jurisdiction conferred upon it under the article. That is a mistaken approach to the rights of citizens under the law. If the law creates a special tribunal with regard to investigation of facts, and confers a right of appeal to a special tribunal also created by law, then the right of the subject to get findings of fact corrected is restricted by law to approaching the tribunals designated by law. It would be defeating the policy of the Legislature if the High Court was to assume jurisdiction on matters of fact when the law clearly indicated that such jurisdiction had been conferred upon independent authorities or tribunals. We do not suggest that there may not be cases where even a finding of fact may by so outrageous, may be such a travesty of truth, that it might be open to the petitioner to urge that the decision had been arrived at arbitrarily, capriciously or mala fide. But then the ground of interference would not be that the finding of fact was erroneous but that there was no finding at all, because in law a finding which is arbitrary or capricious or mala fide cannot be looked upon as a finding of fact required by the relevant law. But a finding of fact which is not vitiated by these considerations is a finding which must be respected by this Court and accepted by this Court, and it is only on the basis of that finding that the Court can be invited to issue a writ either in the nature of mandamus or certiorari.

4. Now, it is unfortunate-and we say this with great respect to the learned Judge-that he was persuaded to allow evidence to be taken on the question whether these particular articles fell within the ambit of the license or not, or, to use a different expression and to sum up what the learned Judge was doing, whether these parts which were imported by the appellants were water pump bearings, and haying heard the evidence the learned Judge came to the conclusion that the decision of the Customs Authority was right. In our opinion, the learned Judge should not have permitted any evidence to be led. No one suggests that it is not permissible to a Judge on a writ to admit evidence in certain cases, but looking to the nature of the writ sought by the petitioners in this case the adducing of evidence by either party, in our opinion, was entirely out of place. It was not open to the petitioners, in order to obtain a writ either of certiorari or mandamus, to challenge the basis of fact on which the order was passed, and we have, therefore, not permitted Mr. Mistree to go into the evidence led before the learned Judge. How impossible the situation becomes, when evidence is permitted on a writ application which should not be permitted, is made clear from the fact that this appeal is largely an appeal challenging the finding of fact by the learned Judge. So we have a finding of fact by the Deputy Collector, we have an appeal on that to the learned Judge below who finds his own facts, and now Mr. Mistree solemnly wants us to sit in judgment on that finding and arrive at our own findings. Mr. Mistree says that he wants to reserve his right to go to a higher Court, if he is permitted to go to a higherCourt, and to argue the point that he was not permitted to go into the evidence. Yes, Mr. Mistree is quite right. Rightly or wrongly we have taken the view that evidence should not have heen permitted on the petition filed by the appellants challenging the order of the Deputy Collector.

5. Now, the only writ that the petitioners could have asked for was either a writ of certiorari or a writ of mandamus. If we look upon the order of the Deputy Collector as a quasi judicial order, then it may conceivably be that the petitioners could ask for a writ of certiorari. But the limitations upon this Court in issuing a writ of certiorari are now fairly well settled. This is not a case where the Deputy Collector has exercised jurisdiction not vested in him. This is not a case where any rules of natural justice have been violated. Therefore, the only head under which the petition can possibly fall is the head known as 'error apparent on the face of the record', and, therefore, it is for the petitioners to satisfy the Court that looking at the order there is some error which is apparent on the face of it. It is also now well settled that the error which is contemplated is not any error in the sense that the tribunal or the authority takes one view of the law rather than another, but the error which must be made clear is an error so manifest that no reasonable person or reasonable judicial mind or legal mind could possibly have come to the conclusion to which the authority came. The position is identical with regard to the writ of mandamus. It is open to the petitioners to urge that in confiscating their goods the Deputy Collector was acting in contravention of the law and if he was so doing it would be open to the Court to issue a writ of mandamus asking him to forbear from doing what he was doing. But just as in the case of certiorari so also in the case of mandamus the statutory duty or obligation which would be the foundation of the writ of mandamus must be clear and explicit. If the law is uncertain, if the Court can take the view that the officer concerned could reasonably have taken a particular view of the law and acted on that view, then a writ of mandamus cannot lie. Nor would a writ of mandamus lie if there are disputed facts and only a decision on the facts would ultimately lead to the conclusion whether a statutory obligation had been violated or not.

6. Now, with this background let us turn to what the controversy between the parties is in this case. As we pointed out, the import license permits the petitioners to import motor vehicle parts and we have to turn to entry 293, which admittedly is the relevant entry in the Import Trade Control Policy, to find out what motor vehicle parts mean, and they are described as

articles (other than rubber tyres and tubes and iron steel bolts and nuts for motor cars) adapted for use as parts and accessories of motor cars, including taxi-cabs but excluding those mentioned in Part II of the Schedule.

When we turn to Part II of the Schedule to find out what is excluded from these articles, we find that they are ball bearings of 1' in bore diameter and below other than those specified in Appendix XIV, with which we are not concerned. Therefore, reading serial Article 293 and item 19 (1)(a)(ii) in Part II of the schedule, it is-clear that what was sought to be excluded from the import license were ball bearings of the particular diameter, and it is common ground that what the petitioners have imported are ball bearings of this diameter. If the matter had stood thus, no difficulty whatsoever could have been caused, because the exclusion being clear, if the petitioners imported the ball bearings, they would be contravening the import law. But in serial Article 293 there is a provision that the detailed licensing policy is given in Appendix XXVI, and when we turn to that Appendix, in Clause 9 it is provided:

Upto 75 per cent of the face value of the licenses for motor vehicle parts granted on the basis indicated in the previous paragraphs can be utilised for the import of ball bearings not specified in Appendix XIV to this Red Book.

Therefore, having enacted a total prohibition against the import of ball bearings, we find a relaxation in Appendix XXVI, but that relaxation is only upto 75 per cent., and the view taken by the Customs Authority in this case is that in importing these ball bearings the petitioners have exceeded this .75 per cent. But the matter does not stop there. Clause 9 goes on to say:

However, water pump bearings, front axle inner bearings, front axle outer bearings, and clutch throw out bearings with forked outer races can be imported against the licenses for motor vehicle parts without restriction.

Therefore, the total restriction with regard to ball bearings having been relaxed to the extent of 75 per cent., this clause goes on to give a further relaxation and that is with regard to certain specific bearings which are described in this clause and one of them are water pump bearings. Therefore, if there are bearings which do not fall in the category of general ball bearings, but which could be classified as specific bearings, viz., water pump bearings, then with regard to those bearings no restriction whatever was put upon its import. In other words, the petitioners could import to the whole extent of their limit water pump bearings without offending against the provisions of their license or of the law. But what is to be borne in mind is that they could not import ball bearings as such because the prohibition against that was clear. The relaxation only was in favour of certain bearings which were specifically described as water pump bearings. Now, the controversy between the parties will become clear. The contention of the petitioners was and is that what they have imported are water pump bearings. On the other hand, the Customs Authority says that what they have imported are ball bearings and not water pump bearings. Now, to the extent that this view of the Customs Authority is a finding of fact, as we have already pointed out that, finding cannot be challenged here. To the extent that the order turns upon the construction of the law, this Court may examine the order in order to find out whether the view taken of the law is. so manifestly untenable that the Court will not permit the order to stand. We must now, therefore, turn to the order itself to see whether the principle we have laid down makes it possible for us to quash the order and to issue a writ either of certiorari or mandamus against the Customs Authority.

7. The Deputy Collector says in his order that the importers were called upon to explain why penal action should not be taken against them, and then he goes on to say:

The importers in their explanation as well as in personal hearing granted to them when they were represented by counsel emphasised the correctness and validity of the license produced for the goods imported. They also produced various catalogues of different manufacturers in support of their claim that the bearings imported by them were used in the water pumps of motor cars. They further contended that a previous consignment of similar goods had been allowed clearance against the same license. It was pointed to the importers at the hearing that even on the basis of the catalogues produced by them the bearings in question had uses other than in water pumps, e.g., as clutch spigot, dynamo and gear box bearings.

Having set out these considerations, the Deputy Collector goes on to say:

It is thus clear that these bearings imported have several uses of which their use in water pumps is only one.

From this he draws the inference:

They are, therefore general purposes bearings which cannot claim the benefits admissible to water pumps bearings. I am also inclined to consider from the evidence produced that the term 'water pump bearing' can refer only to those specially adapted for water pumps and fitted with spindles, etc. In any case, the general nature of the bearings imported, as seen from the catalogues and other literature, makes it clear that they are not 'water pump bearings'.

Now, the whole burden of Mr. Mistree's song, as far as we are able to understand, is that we have here a clear finding that one of the uses of these bearings is that they can be used as water pump bearings. Let us put this in another way. What the Deputy Collector really finds, and Mr. Mistree accepts that expression, is that these are multi-purpose bearings, they serve many purposes, one of the purposes is the purpose of water pumps, and Mr. Mistree says that if once that finding has been arrived at, then in law there is a clear error that these are not water pump bearings, for the purpose of exemption under the Import Trade Control Policy Regulations. Let us put the ease most favourably to the appellants. It is possible to argue that if the bearings imported by the appellants can be used as water pump bearings, then it is irrelevant if they can be used for several other purposes, inasmuch as the law does not require that the ball bearings should be exclusively used as water pump bearings. In the absence of any such provision, the fact that a particular article can be used for other purposes does not make the article a different article. The article remains the same although it may have several uses. But can it be seriously suggested that this is the only possible view of el. 9 of Appendix XXVI? Let us look at the view that the Customs Authority has taken. The view is that looking to the nature of the license issued, looking to the restriction placed by Government upon the general import of ball bearings, looking to the fact that only .75 per cent of general ball bearings could be imported under the license, when Clause 9 permits an import license holder to import water pump bearings, the bearings which are imported in order to be characterised as water pump bearings must be bearings which must be primarily used as water pump bearings. The primary purpose for which they, were manufactured must be that they should serve as water pump bearings, and the Customs Authority says that he is satisfied that these bearings were not intended primarily to serve as water pump bearings, they could be used for half a dozen things, and inasmuch as they can be used for half a dozen things, they are general ordinary ball bearings and not water pump bearings. How can it possibly be said that this view which is taken by the Customs Authority is so manifestly absurd or erroneous that this Court cannot permit that view to stand on the record, and how could it possibly be said that in taking this view and confiscating the goods of the petitioners the Deputy Collector has acted contrary to the mandate of the Legislature and that he has failed to discharge his statutory duty in permitting the import of these goods and has contravened the law by confiscating the goods? In order to succeed, if we might repeat, it is necessary that the petitioners must satisfy us that the view taken by the Deputy Collector is a view which it is impossible for any reasonable person to take. How impossible the argument of the petitioners is may be seen from the fact that on the record of this very case there appears the view of the learned Judge below who has taken the same view as the view taken by the Deputy Collector of Customs. It is true that the view was taken after evidence was given, but the Deputy Collector also says in his order that he consulted catalogues and considered various matters before he came to a particular conclusion.

8. There is one decision which has some bearing on the question that we have to decide which has been canvassed by both the sides and that is an unreported judgment of this Court in B. N. Banerjee, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani (1955) O.C.J. Appeal No. 53 of 1955. There we were concerned with the proper duty which was to be paid on a fountain-pen with a gold cap, and the question that drose was whether the fountain-pen fell under item 45(3) or 61(8) of the schedule to the Indian Customs Tariff. Item 45(3) dealt specifically with fountain-pens and item 61(8) was a general item, and the view that Mr. Justice Tendolkar took and which view was confirmed by the Court of appeal was that inasmuch as there was a specific article which dealt with fountain-pens it was impossible to take the view that fountain-pens could be treated in some other general article dealing with gold parts, and, in our judgment, we have emphasised that the only possible view that we could take of the construction of item 45(3) and item 61(8) was that for the article in question item 45(3) applies and not item 61(8). Therefore, when we analyse that decision, it is clear, in the first place, that there was no disputed question of fact, no finding of fact was challenged, and both sides were agreed that the article to be adjudicated upon was, a fountain-pen. The only question of law was whether it fell under one entry or another. The Customs Authorities took the view that it.fell under one entry, we took the view that it fell under the other entry, but we took the view making it clear that the view of the Customs Authorities was an entirely untenable view and that the error was manifest on the record. If that had been the position here, we would certainly have interfered with the order of the Deputy Collector. But as we have already pointed out, the facts which we have to consider here are entirely different from the facts which we had to consider in the fountain-pen ease.

9. Reference was also made by Mr. Laud to a recent decision of the Supreme Court in Hari Vishnu Kamath v. Syed Ahmad Ishaque : [1955]1SCR1104 , where the Supreme Court has re-emphasised the limited jurisdiction exercised by the Courts when issuing writs of certiorari. At p, 1121 Mr. Justice Yenkatarama Ayyar, who delivered the judgment of the Court, sums up the propositions which emerge from the authorities that he has considered, and the only proposition, it is necessary to refer to is proposition (3):

The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal, even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to re-hear the case on the evidence, and substitute its own findings in certiorari.

Dealing with the question of error of law at p. 1123 the learned Judge accepts the principle laid down in the judgment of this Court in Batuk v. Surat Municipality : AIR1953Bom133 that no error could be said to be apparent on the face of the record if it was not self-evident, and if it required an examination or argument to establish it. The learned Judge says that this might afford a satisfactory basis for decision in the majority of cases. But even this may not work in all cases because the opinion of Judges must differ as to when an error is self-evident and when it is not.

10. The result is that we have come to the conclusion that the order made by the Deputy Collector does not disclose any manifest error of law, nor does it clearly show that there has been any contravention of statutory duty on the part of the Customs Authority. The petitioners were, therefore, not entitled either to a writ of certiorari or a writ of mandamus or any other writ under Article 226. We have come to this conclusion without considering the evidence which the learned Judge has considered. It would be sufficient to say that the learned Judge's view was after careful consideration of the evidence that an article of general use could not be equated with a specific article expressly specified in the license simply because it was possible dn some cases to use that article in place of the latter.

11. The result is that the appeal must fail and is dismissed with costs.

12. Liberty to the respondents' attorneys to withdraw the sum of Rs. 500 deposited in Court.


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