(1) This petitioner for issuance of a writ of certiorari is for the purpose of quashing the orders passed by the Customs authorities levying in penalty on the petitioner Kailash Agencies Madras.
(2) The petitioner imported on 27th of November, 1959, 'Diamine Deep Black ECE' under an import licence issued by the Joint Controller of Imports Madras who is the first respondent, The item imported fails under Part IV/44, under the heading 'Wattle Bark', and was interchangeable with Part V/6 which reads 'Dyeing and Tanning substances all sorts not otherwise specified'. The Collector of Customs took the view that the imported goods were 'Coal tar dyes and came under Part III serial No. 1-B. It was held that the articles so imported were not interchangeable as claimed by the petitioner. Consequently it was directed that the goods should be confiscated or directed that the good should be confiscated or directed that the goods should be confiscated or in lieu of it a fine of RS. 8,250/- -be paid. The appeal before the Central Board of Revenue which is the second respondent having been rejected on 7th of July 1960, and a further revision before the Joint Secretary, Ministry of Finance (respondent No. 3) also having been dismissed on 19th of January 1961 the petitioner has approached this Court for redress.
(3) Mr. Seshadri the learned counsel for the petitioner has rightly refrained form attacking the order on its merits. Instead it is urged by him that the Customs authorities have showed discrimination in imposing the fine. In Paragraph 8 of the petition it is asserted that precisely similar goods were imported prior it the import by the petitioner by Messrs, M. Sheriff and Sons, Madras, and the same were passed without imposition of any and the same were passed without imposition of any penalty. The petitioner when he made a similar import in precisely the same circumstances has been visited with a heavy hand. 'Diamine deep black' having been found to be interchangeable in the case of M. Sheriff and Sons the petitioner should have been accorded similar treatment. Subsequent to the import by the petitioner, Sheriff and Sons against imported the same goods against the same licence in October, 1959, This time the Collector imposed a penalty of only 10 percent of the values of the goods. In the case of the petitioner it is not denied that the penalty amounts to 50 percent of the value of the goods imported.
(4) Thought it is conceded that the respondent have exercised discretionary powers it is submit on basis of a Division Bench authority of the Madras High Court of Rajamannar C. J. and Kailasam J. in Sha Rikadoss Bhavarlal v. Collector of Customs AIR 1962 Mad 164 that confiscation of goods amounts to deprivation of property and there being no reasonable justification for the wide dispartly exercise in the matter of imposition of fine the matter should be reviewed. The basic facts have not been denied by the respondents and it is asserted by Mr. Shankar that the imposition cannot be attacked on ground of discrimination under Article 14 of the Constitution. The case of Sheriff and admitted that the goods were passed on an incorrect interpretation of the entries. It is however submitted that an error once perpetrated can be corrected and the Department is not bound to perpetuate it. No settled practice should be said to have been established merely because the goods in one instance were treated under one category and not the other.
Now the imposition of penalty is dependent on various circumstances and the resultant action is certainly discretionary in nature. In the Division Bench case of Madras to which reference has been be cleared that there was a change in the practice and the article was treated under one category and not the other.
Now the imposition of penalty is dependent on various circumstances and the resultant action is certainly discretionary in nature. In the Division Bench case of Madras to which reference has been made it was only when the goods were sought to be cleared that there was a change in the practice so far as the Customs authorities were concerned and a article was treated under one category and not the other. In my opinion the question imposing a penalty is separate and distinguishable from the one which came up before the Division Bench of the Madras Court. Though it is not so stated the respondents may have been prompted by a variety of reasons in imposing a heavy and exemplary penalty on the petitioner. As observed by their Lordships of the Supreme Court in A. Thangal Kunju Musaliar v. Venkatachalam Potti 1955-2 SCR 1196: ((S) Air 1956 SC 246) it is to be presumed unless the contrary were shown that the administration of a particular law would be done 'not with an evil eye and unequal hand' and the selection made by the Government of persons to be referred for investigation by the Commission would not be discriminatory.
What is to be struck down is really that the abuse of power. In my opinion the solitary instance of Sheriff and Sons does not justify the inference that the respondents have dealt with the case of the petitioner with an 'evil eye or an unequal hand' and in the absence of any other material to show that the powers vesting in the authority have been abused, I would decline to interfere with the orders which is in an admitted exercise of discretionary powers. Without making any order as to costs, I would therefore dismiss this petition.
(5) Petition dismissed.