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Gopikishen Agrawal and anr. Vs. Collector of Customs, Visakhapatnam - Court Judgment

LegalCrystal Citation
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal Nos. 41 and 42 of 1960
Reported inAIR1961AP170
ActsConstitution of India - Article 226; Sea Customs Act, 1878 - Sections 30, 188, 189 and 191
AppellantGopikishen Agrawal and anr.
RespondentCollector of Customs, Visakhapatnam
Appellant AdvocateG. Balaparameswari Rao and ;P. Kameswara Rao, Advs.
Respondent AdvocateAdv. General and ;3rd Government Pleader
DispositionAppeal dismissed
.....of sea customs act, 1878 - demand of custom duty made by custom authorities - appellant challenged jurisdiction of customs officer on ground that real value of ore shipped should be determined according to provision of section 30 (a) and not section 30 (b) - determination of export duty according to clause (a) or (b) is incidental to effective exercise of jurisdiction of custom officer - erroneous interpretation of provision of section 30 would amount to error of law - held, jurisdiction not effected. - - the sections, which bear directly on the issue bearing on the fixation of the real value and the levy of additional duties when the customs duties or charges are short levied are sections 29, 30 and 39. section 29 :on the importation into, or exportation from any customs-port of..........questioned before the tribunal set up by that act. in such a position the parties could invoke the writ jurisdiction of the superior courts. hence, the remarks which are in a sense obiter if we may say so with respect cannot apply to this case where the validity of any of the parts of sea customs act is not put in issue. referring to this dictum of mahajan, j., in this pronouncement, the rajasthan high court in stated that the observations were obiter and that they could not be baldly applied in every case and that each case will have to be judged on its own merits to decide whether the alternative remedy is so onerous as to become inadequate. 43. we do not think that the requirement as to the deposit of the amount demanded would be so onerous as to deprive the parly affected of the.....

Chandra Reddy, C.J.

1. These appeals are filed against the judgment of Seshachalapathi J. in Writ Petitions Nos. 1210 and 1211 of 1958 declining to issue a writ oi mandamus to restrain the respondent from collecting the amount of the difference in duty in pursuance of the final assessment notice served upon the appellants with reference to the various con-cerns.

2. Both the appeals, though the parties are not the same, raise common questions and could therefore be dealt with in one judgment.

3. The appellants are leading exporters of manganese ore to overseas buyers from Visakhapatnam. They entered into contracts with some foreign companies in 1950 agreeing to sell large quantities of manganese ore. The price fixed per ton of 2240 lbs. of dry weight manganese ore f.o.b. steamer, Visakhapatnam, India, was 20 dollars inclusive of all Indian taxes payable by the seller. The contracts contained a stipulation that this price was based upon the metallic manganese content of 46 per cent and for each 1 per cent content about 46 per cent, or below 46 per cent, down to 44 per cent. the price should be increased or decreased respectively by (0.50) per ton (fractions) pro rata.

The seller guaranteed that the ore contained metallic manganese minimum of 44 per cent when dried at 212 degrees. We are unconcerned herewith the other terms of the contract. The Appellant, after obtaining the requisite licence for the export of manganese ore through their agents produced before the customs authorities the shipping bills for certain quantities of manganese ore with 46 per cent manganese content. The value was declared to be Rs. 115 per ton. On this basis, the total cost of the manganese ore was calculated and ad valorem duty was levied provisionally representing customs duties at 15 per cent on the value of the ore to be exported.

Before the duty was imposed, a letter was written to the Collector of Customs, Visakhapat-nam, by or on behalf of the appellants requesting the former to assess the export duty provisionally at 15 per cant ad valorem as per the circulars of the Government dated 25-9-1950. This request was complied with and the duty was provisionally fixed subject to finalisation. The provisional duty having been paid, fie goods were duly exported to the consignees in the United States.

4. A few years later i.e., in 1958, the Customs authorities issued a demand under Sections 39 of the Sea Customs Act alleging that the customs duty paid on certain consignments of manganese was found to have been short levied and that the deficiency should be made up.

5. For the purpose of this enquiry, it is unnecessary to advert to the antecedent correspondence that passed between the appellants and the proper authorities. The appellants were told by a letter dated 28-8-1958 by the Collector of Customs that the assessments on the relevant shipments were finalised and it was found that the correct price prevailing at the time of the delivery of shipping bills at Visakhapatnam was Rs. 150 per ton ex-duty on the basis cf 48 per cent manganese content and adopting the declared manganese content of 46 per cent the correct assessable value worked out at a figure higher than that declared by the appellants and consequently a higher duty was leviable thereon. Credit was given to the sum already paid as provisional assessment and the balance stated to have been short levied was demanded to be paid.

6. The shipping agents of the appellants questioned the validity and the propriety of the demand for additional duty after the lapse of 7 years. Despite this, the authorities insisted upon the payment of the difference between the provisional assessment and the final one. It is to challenge the legality of this demand on the basis of the finali-sation of the duty payable by the appellants that the jurisdiction, of this court tinder Article 226 of the Constitution is invoked.

7. Originally, the reliefs asked for in all these petitions were the issuance of a writ of certiorari to quash the proceedings ending with the finalisation of assessments made under the provisions of the Sea Customs Act. Before the petitions came on for final hearing, the appellants applied for amending the prayer for the issue of a writ of mandamus to direct the Customs authorities to refrain from making the collection as per the demand.

8. Several contentions were advanced before the learned Judge, the chief of which was that the real value of the ore shipped in 1951 should be determined according to the provisions of Section 30(a) of the Sea Customs Act and not Section 30(b) of that Act and, secondly, that the customs authorities should not have relied upon the figures given in the Indian Trade Journal as they related to prices at ex-port Calcutta.

These objections were overruled by the learned judge in the view that it was Section 30(b) and not Section 30(a) that applied to the instant case and that it was quite competent for the customs authorities to call in assistance the figures furnished in that journal. Apart from this, the learned judge felt that a writ of mandamus was not the proper remedy in this case as the appellants have an effective adequate remedy by way of appeal and revision to the appropriate authorities mentioned in Sections 188 and 191 of the Sea Customs Act.

9. The conclusions of the learned judge are assailed in these appeals. On the merits, the same arguments are repeated before us. As to the availability of mandamus jurisdiction to the appellants, it is urged by Sri Balaparameswari Rao that the existence of an alternative remedy is not a bar to the exercise of jurisdiction by this Court.

10. Before we go into the questions as to whether the circumstances of this case call for interference in the exercise of mandamus jurisdiction, we will have to notice some of the relevant sections of the Sea Customs Act (hereinafter referred to as the Act).

Section 6 :

The Central Government may appoint such persons as it thinks fit to be officers of customs, and to exercise the powers conferred and perform the duties imposed, by this Act, on such officers.

Section 8 :

At any place for which there is no custom house, the Collector of the District and the officers subordinate to him shall, unless the Central Government otherwise directs, perform all duties imposed by this Act on a Customs Collector and other officers of customs.

11. Section 20, which is the charging section, provided that all duties shall be levied at such rates as may be prescribed by or under any law for the time being in force. Section 22 authorises the Central Government to fix tariff from time to time by the issue of notifications for the purpose of imposing duties on goods exported or imported by sea. The sections, which bear directly on the issue bearing on the fixation of the real value and the levy of additional duties when the customs duties or charges are short levied are Sections 29, 30 and 39.

Section 29 :

On the importation into, or exportation from any customs-port of any goods, whether liable to duly or not the owner of such goods shall, in his bill of entry or shipping bill, as the case may be, state the real value, quantity and description of such goods to the best of his knowledge and belief and shall subscribe a declaration of the truth of such statement at the foot of such bill.

12. Section 30 : Omitting the immaterial portion recites :

'For the purposes of this Act the real value shall be deemed to be :

(a) the wholesale cash price, less trade discount, for which goods of the like kind and quality are sold, Or are capable of being sold, at the time and place of importation or exportation, as the case may be, without any abatement or deduction whatever except (in the case of goods imported) of the amount of the duties payable on the importation thereof; or

(b) where such price is not ascertainable the cost at which goods of the like kind and quality could be delivered at such place without any abatement or deduction except as aforesaid:'

13. Section 39 : When the customs duties or charges have been short-levied through inadvertence, error, collusion or misconstruction on the part of the officers, of Customs or through misstate-ment as to real value, quantity or description on the part of the owner, or when any such duty or charge, after having been levied, has been owing to any such causes, erroneously refunded, the person chargeable with the duty or charge so short-levied, or to whom such refund has erroneously been made, shall pay the deficiency or repay the amount paid to him in excess on a notice of demand being issued to him within three months from the date of the first assessment or making of the refund.

14. It is immediately plain that the task of determining the export duty is entrusted to the officers of Customs appointed by the Central Government and Section 30 prescribes the basis for the fixation of the real value. Thus, when the customs officials finally computed the duty payable by the appellants, they were acting within their undisputed jurisdiction. The point that falls for decision is that assuming that Section 30 was erroneously interpreted by the customs authorities, is this a case which justifies resort to Article 226 of the Constitution?

15. It is now absolutely settled that a writ of certiorari could only issue to remove a judicial or quasi-judicial order and such a writ will not be available to quash administrative orders. Incontrovertibly, assessments made by the customs authorities cannot have the attribute of judicial or quasi-judicial proceedings, they being only administrative in character.

16. A consideration of the scheme of the Sea Customs Act could only lead to the inference that the statute imposes no obligation upon the assessing authority to act judicially. It may be that, while acting under Section 182 or 188 or 191 the authorities concerned might be discharging quasi-judicial functions. At the initial stages of assessment, when an assessment is made under Section 87, there is nothing quasi-judicial about it.

That being the case, certiorari will not be granted to quash the order directing the appellants to pay additional duty as per the finalisation of the assessments. It is for that reason that the appellants applied for amending the prayer as one for the issue of a mandamus to require the customs authorities to forbear from making the Collection as per the demand. The question for consideration is whether a writ of mandamus is appropriate one in this case.

17. A writ of mandamus is issued to a public officer to enforce the performance of a duty. It is usually connected with the administration of statutes and is employed when a public officer refuses to exert a ministerial duty. In order that a mandamus to compel a public officer to perform a particular duty should be issued, the duty must be plainly prescribed and it should be free from doubt, being equivalent to a positive command. If these conditions exist, its performance will be compelled by the issue of a writ of mandamus, unless there is a specific provision or implication to the contrary.

If on the other hand a statute is susceptible of two constructions i.e., if it is not free from doubt and depends on the construction or application (of a statute) involving the character of a judgment or discretion, a writ of mandamus will not issue. If the act done is plainly and palpably wrong, as a matter of law, then only the mandamus jurisdiction will be exercised. This jurisdiction will not be used to direct an officer to exercise his judgment in a particular manner.

The obligation to be performed must be manifest on the face of the statute and should not give room for doubt as to the meaning thereof. Questions of law, the solution of which require the construction of an Act, cannot form a ground for the issue of a writ of mandamus; that is to say, mere errors of law or wrong interpretation of a statute cannot entitle a party to invoke mandamus jurisdiction. A writ of mandamus does not lie where it is a wrong application of a provision of law to a set of facts,

18. It was, inter alia held in Wilbur v. United States Ex. Rel Kadrie, U. S. Supreme Court Reports (1929) 74 Law Ed 809, that, where the duty of an administrative officer is not so plainly prescribed as to be free from doubt and equivalent to a positive command but depends upon a statute, the contruction or application of which is not free from doubt, it is regarded as involving the character of judgment or discretion which cannot be controlled by mandamus,

19. This principle was re-affirmed in United States Ex Rell McLennan v. Wilbur, U. S. Supreme Court Reports (1930) 75 Law Ed 1148. It was decided there that mandamus could not be treated as a substitute for an ordinary suit but will issue to compel action by a public officer only where the duty to be performed is ministerial and the obligation to act is peremptory and plainly defined.

20. To a similar effect is the ruling in Inter State Commerce Commission v. N. Y. N. H. and H. R. Co., U S. Supreme Court Reports (1932) 77 Law Ed 248.

21. Likewise, it was ruled in United States Ex Rel. C. Etc. Co. v. Inter State Commerce Commission, U. S. Supreme Court Reports, (1935) 79 Law Ed 752, that it is only when an administrative tribunal is plainly and palpably wrong as a matter of law that mandamus should issue to com-pel it to hear a petition upon the merits, but where discretion is vested in an administrative agency and has by that agency been exercised courts are powerless by the use of the writ of mandamus to compel a different conclusion.

22. Similar is the proposition contained in United State Ex Rel Girard T. Co. v. Helvering, U. S. Supreme Court Reports, (1937) 81 Law Ed 1272.

23. If we bear these principles in mind, it will be seen that mandamus cannot be sought In this case. The determination of the export duty according to Clause (a) or Clause (b) is incidental to the effective exercise of the undisputed jurisdiction of the Customs Officer. Even if he had erroneously construed the provisions of Section 30 of the Act, it would amount only to an error of law and does not in any way touch his jurisdiction. Consequently, the proceedings culminating in the finalisation of the assessment are not amenable to mandamus jurisdiction.

24. Further the existence of an adequate remedy will exclude mandamus.

25. In Vol. II of Halsbury's Laws of England, Simond's Edition, it is stated at page 107,

'The court will, as a general rule, and In the exercise of its discretion, refuse an order of mandamus, when there is an alternative specific remedy at law which is not less convenient, bene-ficient and effective.'

At page 130, the legal position is put in the negative way in the following passage :

'There is no rule in regard to certiorari, as there is with mandamus that it will lie only where there is no other equally effective remedy; and provided that requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute.'

26. This rule is adopted by the Supreme Court in State of U. P. v. Mohd. Nooh, AIR 1958 SC 86.

27. No doubt it is different when fundamental rights are infringed or when the constitutionality of an enactment is put in challenge and the questions that are sought to be debated in an application for mandamus could not he agitated before the appropriate statutory tribunals.

28. In this connection we may usefully extract the observations of the Supreme Court in Bengal Immunity Co. v. State of Bihar, : [1955]2SCR603 :

'We are not here concerned with a statute whose vires is not in question and which confers jurisdiction on any authority to take proceedings if certain facts exist and the enquiry directed by the authority is as to whether those facts exist. The determination in such a case is incidental to the effective exercise by the authority of its undisputed jurisdiction and if, as a result of that enquiry, it came to an erroneous conclusion, there is no error of jurisdiction and it might well be contended in that case that the remedy of the party aggrieved was to resort to the machinery provided in the statute itself by way of appeal or revision and that a writ of prohibition would be misconceived.'

29. In Syed Mohamed and Co. v. State of Madras, : AIR1953Mad105 a Bench of the Madras High Court consisting of Rajamannar C. J. and Venkatarama Ayyar J., held in a case under the Madras General Sales Tax Act that it is only points which could not be raised before the tribunals created under that Act that could be canvassed in writ proceedings.

30. To a similar effect is the decision of a Bench of the Allahabad High Court in Firm Har Prasad Sheodutt Rai v. Sales Tax Officer, : AIR1959All246 . It was held there that,

'The High Court is not bound to entertain a petition under Article 226 of the Constitution of India praying for the quashing of an assessment order merely on the ground that question of law arises. Where the question relates to the interpretation of a provision of law and no question of the validity of a legislation is involved the assessee should seek his remedies provided under the Sales Tax Act.'

31. The same view is taken by the High Court of Rajasthan in Jethmal Ramswaroop v. The State, (1959) 10 STC 270 : (AIR 1938 Raj 262).

32. These rulings are based on the principle that when the legislature has set up a machinery for remedying the grievances of parties, the aggrieved persons have to work out their remedies by resort to that machinery. The Sea Customs Act has conferred on the assessee the right of appeal to the Chief Customs authority against orders of the Subordinate authority and a right of revision to the Central Government.

33. Section 188 so far as it is relevant recites: 'Any person deeming himself aggrieved by any decision or order passed by the officer of Customs under this Act may, within three months from the date of such decision or order, appeal therefrom to the Chief Customs authority, or in such cases as the Central Government directes, to any officer of customs not inferior to rank to a Customs collector and empowered in that behalf by name or in virtue of his office by the Government.

Such authority or officer may thereupon make such further enquiry and pass such order as he thinks fit confirming, altering, annulling the decision or order appealed against.'

34. Section 191 enacts:

'The Central Government may on the application of any person aggrieved by any decision or order passed under this Act by any officer of Customs or Chief Customs authority and from which no appeal lies, reverse or - modify such decision or order.'

35. It is manifest that the Act affords efficacious and specific remedies to an aggrieved person and therefore the appellants could obtain their remedy from those tribunals.

36. It is strenuously urged on behalf of the appellants that the presence of an alternative re-medy would not disentitle the parties to maintain a petition when the parties are subjected to duties much higher than those contemplated by the relevant provisions of the Act and that in similar circumstances the Bombay High Court interfered in Glaxo Laboratories (India) Private Ltd. v. Venkates-swaran, : AIR1959Bom372 and in.

37. In the first of these cases, in issuing short levy notices, no reasons were vouchsafed to the appellants as to how and why the assessing authorities reached a particular decision or assessed the appellants in a particular manner. More than that the Collector to whom an appeal lay in regard to the assessment on the 9 consignments under Section 188 of the Sea Customs Act had passed an order of assessment with regard to the 10th consignment wherein he indicated what his view on the merits of the appellants' case were, thereby showing that he had prejudged the decision of the appeal.

In such a situation Chagla C. J. and Desai J. said that the assessees could not be compelled to go by way of appeal before the Collector as the assessees could not get justice from the appellate Tribunal. The learned Chief Justice added that

'the appeal would be nothing more than this, to use the language of Sri Trevor Harries an appeal from Caeser to Caesar.' That case has no analogy here.

38. In the second of the two cases, the Judge who heard the petition (Bose, J.) declined to issue any writ of mandamus or certiorari with respect to the demand notices issued under the provisions of the Sea Customs Act or to direct the respondents to forbear to give effect to the said notices etc. The main reason for throwing out the petition was-that the petitioner made a disingenuous attempt to-make out a case that he had not been given a proper opportunity to present his case and that he had deliberately suppressed material facts. He further found that an opportunity had in fact been given to-the petitioner and that there was no violation or the principles of natural justice in that regard.

The appeal filed by the company was dismissed by Chief Justice Chakravarti and Lahiri J. who-agreed with the conclusion of Bose J. It was only in passing that the appellate Rench observed that the existence of an alternative remedy was not an absolute bar to the maintenance of an application-for a writ Further, the Central Board of Revenue had itself taken the action impugned and in such circumstances they thought that it would hardly be said that the alternative remedy was or would be an adequate remedy. These remarks were made in an entirely different context viz., that the action impugned was given by the Central Board of Revenue.

39. It was next argued that Sees. 188 and 191 do not furnish an effective remedy since, under Section 189 of the Act the appellants should deposit the whole of the amount demanded in the hands of the Customs collector who passed the order. A remedy like this which is subject to this condition cannot be described as an adequate alternative remedy, continued the learned counsel.

40. To substantiate this proposition, reliance is placed on the observations of a Bench of this Court in Baroness Wilhelmine Von Maltazan v. Customs Collector, 1957-2 Andh WR 207 : (AIR 1958 Andh Era 122) to the effect that as the petitioner therein-could avail herself of the remedies provided by Sections 188 and 191 the petitioner had to deposit the entire amount under Section 189 of the Act and consequently such a provision could not be described! as an adequate alternative remedy, that, in some cases the amount of deposit may be so heavy that the petitioner might not be in a position to deposit the same and that in such a case it would amount to taking away the right of appeal by another process viz., imposing a condition for the deposit of the amount. These observations made by the learned judges were merely obiter. They stated that they did not wish to go into a further discussion of the point as the petitioner had no case on merits.

41. Nor has the decision in Himmatlal Harilal Mehta v. State of Madhya Pradesh, : [1954]1SCR1122 any parallel in this case. The passage called in aid by the appellants is as follows:-

'Moreover the remedy provided by the Act is of an onerous and burdensome character. Before the appellant can avail of it he had to deposit the whole amount of the tax. Such a provision can hardly be described as an adequate alternative remedy.'

42. It must be remembered that in that case the vires of certain sections of the C. P. and Berar Sales Tax Act were challenged. That being so, the validity of those provisions of law could not be questioned before the Tribunal set up by that Act. In such a position the parties could invoke the writ jurisdiction of the superior courts. Hence, the remarks which are in a sense obiter if we may say so with respect cannot apply to this case where the validity of any of the parts of Sea Customs Act is not put in issue.

Referring to this dictum of Mahajan, J., in this pronouncement, the Rajasthan High Court in stated that the observations were obiter and that they could not be baldly applied in every case and that each case will have to be judged on its own merits to decide whether the alternative remedy is so onerous as to become inadequate.

43. We do not think that the requirement as to the deposit of the amount demanded would be so onerous as to deprive the parly affected of the right of appeal or revision. It would be remembered that the right of appeal is not an inherent right but is a creature of statute. As such, it is open to the legislature to give this right subject to certain conditions. When a legislature prescribes a condition for filing an appeal, such a right could not be regarded as inadequate or ineffective. There is nothing illegal or unauthorised or burdensome in requiring the appellants to make the deposit pending an appeal.

44. In this connection, we may extract the following passage in C. M. Patel v. Union of India, : 1978(2)ELT297(SC) rendered by the Supreme Court:

'Lastly it was contended that the two main orders passed were ultra vires because in the first case the petitioner was asked to deposit the penally before the appeal or revision could he heard and reliance was placed on : [1954]1SCR1122 . But it is difficult to see how that case applies. There was no illegal imposition on the petitioner nor is it shown that anything was threatened to be realised without the authority of law.' These observations apply with full vigour to the instant case.

45. For these reasons we cannot agree that the condition envisaged by Section 189 of the Sea Cus-toms Act would render the remedy afforded by Sections 188 and 191 of the Act an inadequate or ineffective remedy. Hence, the existence of the two remedies by way of appeal and revision are quite efficacious and could be pursued by the aggrieved parties. Therefore, a writ of mandamus could not be granted to the appellants and the petitions were rightly rejected by our learned brother.

46. The Advocate-General has given an undertaking that the Department would not raise the plea of limitation when an appeal is filed. In this view of the matter, it is unnecessary for us to determine the precise meaning of Clause (a) or Clause (b) of Section 30 of the Act.

47. In the result, we decline to interfere withthe judgment of our learned brother Seshathala-pathi J. and dismiss the appeal with costs one set.Advocate's fee Rs. 250/-.

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