M.L. Shrimal, J.
1. Petitioner No. 1 is a public limited company, incorporated under the Indian Companies Act, 1880 and petitioner No. 2 is its shareholder, The Company has a number of industrial establishments at various places in India. The Company owns a unit known as M/s. Sriram Rayons, located at Sriram Nagar, Kota which manufactures 'Rayon Tyre Cord Fabric', 'Rayon Tyre Yarn' and 'Rayon Tyre Coud' and auxiliary products, such as Sulphuric Acid, Carbon-di-sulphide, etc.
2. The case of the petitioner company is that for the purpose of manufacturing 'Tyre Cord Fabric', ' Tyre Yarn' or 'Tyre Cord', the raw material used is 'Tyre Cord Crade Woodpulp'. The technical know-how of the woodpulp is only with the United States of America. The 'Tyre Cord woodpulp' or any other like product, which could be used in the manufacture of 'Tyre Cord Fabric', is not produced or manufactured in India and the petitioner is a required to import the same.
3. The petitioner imports the above noted item, spare parts and machinery from the United States of America. They are received through Bombay port. Yellow bills of entry are filled up and assessments are made at Bombay. The woodpulp is transferred from Bombay to Kota and is stored in the private custom bounded warehouse, situated in the petitioner's factory, in accordance with the provisions of Section 58 of the Customs Act, 1962 (Act No. 52 of 1962). The woodpulp is cleared for home consumption by submitting green bill of entry and the duty is paid through PLA.
4. Under the Customs Act, 1962 (in short the Act), goods imported into India are subject to levy of duty of customs at the rates specified under the Customs Tariff Act, '975 ( Act No. 51 of 1975). The charging section is Section 12 of the Act. Section 14 deals with valuation of goods for the purpose of assessment.
5. The case of the petitioner is that while computing the value of goods for the purpose of levy of customs duty, in addition to CIF value of the goods, the Customs Authorities add 3/4% of the CIF value as 'Port Trust Landing Charges'. The petitioner contends that the actual lending charges of the goods are paid by the consignor to the carriers and are included in the CIF value as an element of freight charges. The recalled 'landing charges' are not paid by the petitioner as importer and as such its adding to the CIF value to arrive at the assessable value is illegal, arbitrary and without the authority of law. The Customs Valuation Rules, 1963, do not provide or authorise the addition of 'landing charges' to the valuation of goods. The customs duty is charged on the goods by reference to their value and by valuing the goods the Customs Authorities add 3/4% of the CIF value to the valuation of the goods and charge the customs duty on the total amount. The petitioner contends that the recovery of customs duty on the goods after adding the 'lending charges' is without the authority of law and they have to be refunded. However, the petitioner restricts its claim for three years from the dale of filing of the petition. The petitioner has claimed the refund of an amount of Rs. 43,319.38 for the period, October 12, 1979 to February 4, 1980. The Assistant Collector; vide his communication, dated July 22, 1980, flatly denied the claim of the petitioner and held that the refund claims are not admissible as 'the landing charges' are the inevitable ingredients of the assessable value for the charges of customs duty on the imported goods and (hey cannot be excluded from the assessable value, because the value of the goods is to be determined in accordance with Section 14 of the Customs Act, 1944, which reads:
The price at which such or like goods are ordinarily sold, or offered for sale, for delivery at the time and place of importation or exportation, as the case may be, in the course of international trade, where the seller and the buyer have no interest in the business of each other and the price is the sole consideration for the sale or offer for sale.
6. The main contention of the petitioner is that chargeability in respect of the levy of customs duty arises when the goods are imported into India i.e , when they cross the customs barriers. The chargeability is determined by Section 12(1) of the Act and that took place when the goods were imported into India i.e , into the territorial borders of India Section 14 is merely a process for determining the valuation of goods. It does not and cannot control the provisions of Section 12. The impugned actions of the authorities are ultra-vires of the powers of the respondents under Section 12 of the Act. Customs duty is a duty on importation of goods just as duty or excise is the duty on the manufacture of goods. Both the duties are governed by identical principles. It is well settled that post manufacturing expenses are not included in the charges of assessing the excise duty payable in respect of manufacture of goods. On the parity of reasoning, it can be said that customs duty cannot be charged on any postimportation expenses. The landing charges are post-imporation charges, inclusion of which by reason of the provisions of Section 14 of trie-Act would make the provisions of the said section unreasoanble and violative of Articles 14, 19 and 21 of the Constitution. In cases, where the Legislature desires to impose additional duty, such a counter-vailing duty, it has expressly made provision for the same Section 14 of the Act, therefore, cannot be construed so as to add landing charges in the assessable value of the goods for the purpose of assessment of the customs duty. The frieght paid to the steamer agencies includes the charges upto the point of importation and any other addition to the value of goods after the importation is not authorised by any provision of law.
7. Learned Counsel appearing for the Union of India, has urged that alternative remedy provided under the law is adequate and efficacious.
(a) The petitioner ought not to have rushed to the Court under Article 226 of the Constitution of India without exhausting remedy provided under the Act. The invoices produced with the writ petition do not show that the freight charges include port trust landing charges. The assessable value of the goods is not invoice value but the invoice value plus landing charges recovered by the Port Trust Authorities. Only a show cause notice was issued and if the petitioner wished to state anything against the proposed action it ought to have filed a reply and explain its case before respondent No. 2. Then, after taking evidence by affidavits or otherwise, the Customs Authorities would have determined the issue between the parties. The disputed questions of fact, dependent on evidence, are undecided in the case on hand.
(b) Section 14 of the Act clearly provides that the value for the puposes of assessment is the same at which such or like goods are offered for sale or delivery at the time of importation. This necessarily includes the port trust landing charges. The wore, 'price' and 'value' are two different things as per scheme of the Act and the custom duty has to be charged on value determined according to Section 14 of the Act.
8. We have given careful consideration to the rival contentions raised by the parties. The different terms used in overseas suppliers' invoices are familiar to the business world. Some suppliers quote an ex-factory price and they show separately all different charges such as freight and inland loading charges etc. Ex-factory price plus inland freight upto loading port will convert it into a FAS price. The abbreviation FAS stands for 'free alongside ship.'
9. Sections 12, 14 and 8 of the Act are required to be read in conjunction with other provisions contained in the Act. Under Section 8 the Collector of Customs is empowered to approve proper places at any customs port or customs Airport or coastal port for stocking the unloading and loading of goods or for any class of goods. He may also specify the limits of any customs area. A perusal of para No. 13 of the writ petition shows that the petitioner had been paying customs duty on CIF value plus 3/4% of the CJF value as port trust loading charges. The recoveries from the importers of goods is being made under the provisions of the Bombay Port Trust Act, Rules and Notifications made there under. The petitioner company generally imports goods by steamer and has, therefore, to incur the charges for unloading the goods at the place notified by the Customs Authorities under Section 8 of the Act. The goods are required to be placed at the protected place, meant for stocking the goods. 3/4% of the CJF charges are the statutory charges, which the port trust authorities recover. 'Goods imported into or exported from India' cannot mean goods exported from the territorial waters of India. It cannot mean goods imported from the hypothetical line drawn on the boundary of the Indian territorial waters. It is succeptible to only one interpretation, viz , the goods exported from the 'landmass' of India specified or notified by the Customs Authorities. Once this view is taken in the context of exportation from India, the expression 'imported into', which forms part of the expression 'or exported from India', cannot carry any other meaning The assessable value in the terms given under the 'taxable event' does not occur when the goods reach the port and enter the Indian territorial waters. The goods are not valued at the point of time when they are still on the ship. It is a well-known factor that the valuation of the goods has to be made not at the point of time when the ship enters the territorial water, but at the time when the goods are stocked at the place notified by the Customs Authorities.
10. Section 12 of the Act must be read in a consistent manner so that the same meaning can be assigned to the expression 'India', when it is used in the context of exportation of goods from India as also when it is used in the next breath in the context of importation of goods into India. We have, therefore, no hesitation in holding that Section 12 refers to exportation from or importation into, of goods with reference to landmass of India, specified and notified by the Customs Authorities and not with reference to the territorial waters of India. The requirements of Section 14 of the Customs Act, pertaining to valuation of goods for the purposes of assessment, are: (1) the price of goods at which such or like goods are ordinarily offered for sale or sold; (ii) such price is required to be determined with reference to time and place of importation of goods; (iii) the price must be the price at which the goods are ordinarily sold or offered for sale in accordance with the international trade and (iv) the price must be genuine price between a commercial seller and a commercial buyer unrelated to each other. Such being the position, propositions Nos. (ii) and (iii) must be called into aid for the purposes of determination of the assessable value of the goods. The goods have to be valued at the point of time of being loaded on the Indian soil and at the place where they are required to be stocked. The sale can take place only after the goods are landed and stocked at the place, specified by the Customs Authorities. The price at which the goods are sold or offered for sale would of necessity include the landing charges, payable before the transaction of sale is effected.
11. Learned Counsel for the petitioner argued that when a steamer arrives at the destination port, where the cargo is to be unloaded, the steamer authorities employ steved relabour. This labour works in the ship's batches. They prepare the slings of the cargo to be unloaded and hook these slings to the landing gear etc. All the expenses on account of such stevedore labour are borne by the steamer on its own account. It does not levy any extra dues either to the bill of the landing holder or his nominee and this service is included within the freight charges collected. We do not find such an averment in the writ petition. It is a matter of common knowledge that most of the ships use Port Authority cranes and the expenses, incurred for running winches and paid to the Port Authorities, are borne by the consignee. Landing cargo ex-hook on the port authorities wharf in itself is not the compliance with the provision of the Customs Act. The cargo is required to be taken to the place approved by the Customs authorities for the unloading and stocking of goods. Even if the ship authorities incur such expenses, it cannot be said that it is at par with CIF quotation. Such an invoice, where the extra charges over and above the freight have to be described separately in CIF contract, because the goods are required to be stocked at the place approved by the Customs Authorities. There is nothing on record to show that the landing charges should be excluded in determining assessable value of the imported goods for the purpose of computation of the customs duty. For recovering customs duty the landing charges have always been included in the value of the goods admittedly from the date of the formation of the Port Company and in the business world at least for the last 40 years. Reference in this connection may be made to Notifications issued by Collector, Customs from time to time under Section 14(1). The interpretation which has prevailed in all quarters, such as, in respect of the importer, the exporter and others concerned, cannot be over-turned by a party at its own whim. All transactions have been made on this basis for all these years. Some importers have always marketed the goods on the terms of payment of 3/4% of the Port Trust landing charges of CIF value. The customs have been made to pay the price of the goods, on this assumption. The valuation of the goods is to be made on the basis of the price at which the same would be sold and offered for sale under Section 14 of the Act. The purchaser is bound to look into the condition of the goods i.e., whether they are damaged or not. This can be done only when the goods are stocked at the place required to be fixed by the Customs Authorities. Naturally the charges payable to the Port Trust Authorities at the time when the goods are unloaded and brought to the place for stocking, are bound to be included in the value of the goods.
12. In Prakash Cotton Mills (P) Ltd. v. B. Sen and Ors. 1979 16 STC 599 SC wherein Sections 14, 15, 49 and 68 of the Customs Act as amended upto date by the Act of 1966, came up for consideration. Their Lordships of the Supreme Court held that the rate and valuation of the goods for the purpose of Section 15(1)(b) of the Customs Act was the rate and valuation in force on the date on which the warehoused goods were actually secured from the warehouse. The reasoning of the above noted case thus lends support to the view, canvassed by the Revenue. The invoices produced with the writ petition nowhere show that the landing charges are paid by the ship owners. The two letters, dated August 6, 1982, issued by Narendra Company mentioning therein that they had not been paying the charges for unloading the goods from the ship on the landmass of India on behalf of DCM are by themselves not sufficient. They nowhere state that 3/4% of the CIF is not being paid by them to the Port Trust Authorities at Bombay. Besides, the above noted two letters have been obtained by the petitioner after filing of the writ petition. They do not stand supported by an affidavit of the Proprietor of the concern, Narendra & Company. The photo-stat copies, Annexure 1, have very conveniently been made available to the Court in such a condition that nothing can be deciphered therefrom. The learned Counsel, appearing for the petitioner, was asked to point out the condition from Annexure-1, wherein it was mentioned that the shipping authorities would hook the goods and would place the cargo at the place required to be stacked by the Customs Authorities. But the counsel failed to do so. The decision of the fact as to whether the charges for preparing the sling of the cargo to unload and to hook these slings to the lending gear and carrying it further in the comes for stevedoring it to a safe protected place are borne by the ship authorities or the importers is plainly a question of fact, which would need evidence of both the sides and the Customs Authorities are the best persons to decide it, as these are the persons who deal with such contracts every day. They deal with the Government imports, private trade etc. They also know about the different systems involved in importing and exporting cargos into and from India. Such transactions are carried on with various ports of the word, such as U.S A., U.S.S.R. African countries Japan, Nauritius and other. The fine distinction between F.O.S. destination contrect and C.I.F. destination contract can also well be detremined by them on the basis of evidence led before them. The parties have failed to produce proper documents and sufficient evidence before us on the basis of which it can be safely affirmed or denied that the charges recovered by the Port Trust Authorities, as landing charges are not paid by the ship authorities have to hook carge at the landing place and the place meant for stacking the importers or that fixed by the Customs Authorities.
13. The position of law is that in matters of taxation a petition under Articles 226 & 227 of the Constitution of India should be entertained only in exceptional circumstances, such as, when the attack is against the jurisdiction of the taxing officer or there is something to show that it would be a case of culpable injustice to force the assessee to adopt the remedies provided by the Act (5.7'. Officer, Jodpur v. Shiv Ratan C. Mohetta 16 STC 599 While dealing with the case of income-tax, it was held that the question relating to the assessment method and collection of tax could be interfered with only when violation of fundamental rights is in question Shivrem Poddar v. I.T. Officer Central Circle 11 Calcutta : 51ITR823(SC) Now Article 19(f) stands omitted and the property right no longer remains as a fundamental right. In Than singh Naihmal v. The Supdt. of Taxes, Dhubri 15 STC 468 it was held that the heirarchy of the taxing tribunals have been conferred with powers to decide questions of fact and the High Court has no power to decide such questions which are exclusively within the jurisdiction of the taxing authority. In Tata Engineering & Locomative Co Ltd The Asstt. Commercial Taxes 19 STC 520 it was held that the exercise of jurisdiction by the High Court is not desirable, if facts have to be found on evidence The Supreme Court has also ruled that the petitioner should not be permitted to bypass the statutory machinery Bhopal Sagar Industries Ltd. M.P. v. D.P. Dube STC Bhopal 14 STC 410 nor should the High Court decide whether a particular commodity falls under a given head is liable to tax, for example, whether 'Baniyan' or Chaddies were hosiery products and it should have been left to the assessing authorities to decide the question in the circumstances of the case (Jaipur Hosiery Mills Pvt. Ltd. v. The State of Raj. AIR 1981 SC 1330. The petitioner in para 9 of the writ petition has mentioned that actual landing charges of the goods imported are paid by the consignee to the corner and are included in C.I.F. value as an element of freight charges whereas in Sub-clause (i) of sub-para (10) of Para 15, it has been said that landing charges are post import charges & inclusion such charges by reason of the provision of Section 14 would make the provision of the said section unreasonable and violative of Article 14, 19 &, 21 of the Constitution of India. Thus the petitioner has tried to counsel material facts. As already mentioned above as per averment of para 9 landing charges are not paid by the petitioner to the Port Trust Authorities, whereas the averment made in para No. (1) (c) of para indicates that they are paid after goods are placed on the dock. The case of the Union Government is that these charges are recovered by Port Trust Authorities from consignee and they are paid prior to the delivery of the goods to the consignee. Thus there is manifestly a dispute of fact between the parties as to whether the landing charges are paid by the consignee or not. It is purely a question of fact and it is for the Customs Authorities to decide this question.
15. The orders passed by the officers of the Customs Department were appealable under Section 128 of the Act. If the petitioner thought that the customs duty was not leviable on the amount of 3/4% of the CIF value of the goods, the petitioner could have filed an appeal and the appropriate authority was required to give an opportunity of hearing to the aggrieved party. He could make further inquiry into the matter and could thereafter confirm, modify or annul the decision or order appealed against. The orders passed by the Appellate Authority are further revisable under Sections 130 and 131 of the Act.
16. In Gulabdas & Co. and Anr. v. Assistant Collector of Custom and Ors. : 1983ECR1618D(SC) , the argument regarding entertainment of writ petition on the ground of it fringement of fundamental right raised by the petitioner was repelied by the Constitution Bench, consisting of five judges and the writ petition was dismissed with the following observation:
If the provisions of law under which the impugned orders have been passed are good provisions and the orders passed are with jurisdiction, whether they be right or wrong on facts, there is really no question of the infraction of a fundamental right. If a particular decision is erroneous on facts or merits, the proper remedy is by way of an appeal.
17. It is true that existence of another remedy does not affect the jurisdiction of the Court to issue a writ, but existence of adequate legal remedy under the Act has to be taken into consideration in the matter of granting writs and where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a writ under Article 226, unless there are good grounds therefor Union of India v. T.R. Verma : (1958)IILLJ259SC The High Court should be slow in encouraging parties to circumvent the special provisions made, providing for appeals and revisions in respect of the orders which they seek to challenge by writ petition under Article 226, British India Steam Navigation Co. Ltd v. Jeejit Singh, Additional Collector of Customs, Calcutta and Ors. : AIR1964SC1451 .
18. From the resume of the case, it is further clear that the writ petition has been filed after the expiry of considerable time of the payment of customs duty. Power to give relief under Article 226 is a discretionary one. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Courts rightly take into consideration in the exercise of such a discretion is the delay made by the aggrieved party in seeking this special remedy and the excuse, if there be any. Where a person comes to the Court for relief under Article 226 of the Constitution, on the allegation that he has been assessed to tax under a void legislation and having paid it under a mistake is entitled to get it back, the Court, even if it finds that the assessment was made under a void provision of law and the payment was made by mistake, is not bound to exercise its discretionary direction of repayment. Whether repayment should be ordered in the exercise of such discretion will depend in each case on its own facts and circumstances. It may, however, be stated as a general rule that if there has been an unreasonable delay, the Court ought not ordinarily lend its aid to a party by this extraordinary remedy of mandamus.
19. It is a settled law that except in a case where the delay is duly accounted for, mandamus will not be granted unless applied for within a reasonable time after the demand or refusal to do the act, vide Broughton v. Stamp Duty Commissioner AIR 1954 SC 1000 and Halsbury's Land of England, Vol.11 page 73 Third Edition. Again, where, even if there is no such delay, the Government or the statutory authority, against whom the consequential relief is prayed for raises a prima facie triable issue as regards the availability of such relief on the merits on the ground like limitation, the Court should ordinarily refuse to issue the writ of mandamus for such payment. Sections 12 and 27 of the Customs Act, 1962 clearly indicate that it is open to the State Government to raise the plea of limitation as also to raise arguable issues regarding facts and law relating to the maintainability of the claim of the petitioner. It would be a sound use of discretion to leave the party to seek his or its remedy by the ordinary mode of action under the Customs Act 1962, or in a Civil Court and to decline to exercise the extraordinary remedy under Article 226 of the Constitution. This conclusion stands fully supported by a decision of their Lordships of the Supreme Court reported in State of Modhya Pradesh v. Bhailal Bhoi AIR 1914 SC 1006 wherein the writ petition for refund of amount was dismissed on the above noted two grounds even though the tax recovered in that case was held to be illegal. In another case the writ petition regarding refund of illegal assessment, filed by Raja Jagdambik Pratap Narain Singh, before the Allahabed High Court, was dismissed the appeal filed before the Supreme Court was also dismissed, vide Raja Jagdambik Pratap Narain Singh v. Central Board of Direct Taxes and Ors. : 100ITR698(SC) . The Customs Act is a self-contained Code. There is a complete and precise scheme for recovery of the tax, for regulating the procedure and for its refund. It also prescribes appeals and revisions from subordinate authorities to higher authorities. The remedies for redress of grievances or for the correction or errors are found in the statute itself and it is to these remedies that resort must generally be made. 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 in law, which in not less convenient, beneficial and effective: Stapeny Brought Council v. John Walker 1934 AC 365 In other words, remedy by mandamus will not be available when a specific remedy is given in the Act itself, Pasmore v. Caswaldtwistle Urban Council 1898 AC 387. The authorities concerned under the law can also enquire into the facts and tax, additional evidence. For all these reasons we are firmly of opinion that interference in this case under Article 226 of the Constitution at this stage is not at all called for.
20. Another main point in the petitioner's case is that during the last three years the respondent wrongly collected from it the customs duty. In fact what the petitioner is seeking to achieve by way of this writ petition is in fact enforcement of quasicontractual right under Section 72 of the Indian Contract Act, 1872, for recovery of the money which, according to the petitioner, was paid to the respondent under mistake of law. It is well settled that mandamus does not lie to enforce private or contractual rights. An application for mandamus must show that the applicant has a subsisting legal right to the performance of a substantive legal duty by a public officer.
21. A careful examination of Section 14, read with other provisions of the Act shows that in the opinion of the legislature the right to sell in connected with the payment of duties. Sale in the object of importation and is an essential ingredient of that intercourse, of which importation constitutes a part. Import of goods is not merely bringing the goods in the country. Thus, sea stores goods imported and re-exported in the same vessel, goods landed and carried overland for the purpose of being re-exported from some other port and goods forced in by stress or weather and landed, but not for sale cannot be made to pay customs duty. The only manner in which Section 14 can be interpreted in a reasonable way is to apply the test of valuation of goods after they are stocked which necessarily includes landing charges paid to the Port Trust Authorities. The words 'the place of importation' appear in Section 30 (a) of the Sea Customs Act (8 of 1878) and the same words also appear in Section 14 of the Act. Section 30 of the Sea Customs Act, which is almost similar to Section 14 of the Act, reads as under:
30. For the purpose of this Act the real value shall be deemed to be : (a) the whole-sale cash priceless 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 & quality could be delivered at such place, without quality could be delivered at such place, without any abatement or deduction except as aforesaid.
22. This section came up for interpretation before their Lordships of the Privy Council, in Ford Motor Company of India Ltd. v. Secretary of State . The appellants in that case had a monopoly of supply of Ford vehicles to India. They used to sell the motors to various dealers or distributors. The distributors had to pay the price before obtaining delivery. The delivery used to be given by the appellants 'free on rail' save in the case of various district for the district of Bombay itself vis., Ford Automobiles (India) Ltd. to whom delivery was used to be made at their own were house in Bombay. Each of the cargo arrived in India was packed, in a case but incompletely assembled. The battery had to be charged and fixed, the wheels, mudguards, and running boards to be fixed, and other items of work had to be done to put the vehicle in running order. Having no facilities for doing such work in Bombay, the appellants gave delivery of the cars in State in which they had arrived, making an agreed allowance to their distributors against the price. For each car the allowance was 13 rupees 8 annas. Under the Second Schedule to the Indian Tariff Act (8 of 1894), as it stood in 1929, motor cars were chargeable with chargeable with a customs duty calculated at 20 per cent of the ' real value' as defined by Section 30 of the Sea Customs Act, 1878. Customs Authorities assessed to customs duty the Ford Motor cars upon the view that Clause (a) of Section 30 of the Sea Customs Act applied to the case and that the price charged by the appellant to the distributors, excluding therefrom the allowance of Rs. 15-8-0, was such a wholesale cash price as is specified therein. The appellants disputed this assestment. On September, 12, 1929 the appellants, having paid on March 22, 1929, under protest the sum of R 81986/9-, claimed by the Customs Authorities, sued the Secretary of State-in-Council in the High Court of Bombay for a return of Rule 15, 118/11/- as duty over-paid and for certain declaration as to the correct basis of assessment. The learned trial Judge Tyabji J, held (on January 21, 1935) that the motor cars were in the circumstances assessable under Clause (a) of Section 30, but that duty was only payable upon the basis of the appellants' price to the distributors, provided that deductions therefrom were made so as to reduce it to an 'ex-ship price. With this object he reduced the figure by making two deductions, siz., (a) delivery, and (b) the appellant's overhead charges in respect of the assembling of the cars after importation. Upon the appeal by both the parties to a Division Bench, it was held that the assessment made by the Customs Authorities was correct and the appellants' suit was dismissed with costs. Thus the deduction of the cost of carriage from the dock to the place of delivery, allowed by Tyabji J., was not allowed by the appellate court i. e., the Privy Council. Before the Board the appellant's counsel did not contend for 'ex ship' but suggested that 'ex wharf' might not be too narrow and that in any case 'place of importation' would not extend beyond the limits of the port and that the cargos should be be analysed so as to eliminate the proportionate cost of the journey from the boundary of the ports to the railway station in Bombay. Their Lordships did not accept this argument and dismissed the appeal. On the parity of reasoning we have no hesitation in reaching the conclusion that inclusion of landing charges in the assessable value cannot be regarded as inclusion of post-importation charges. It is futile to contend that the landing charges cannot be included in determining the assessable value of the import goods for the purpose of computation of the customs duty. The provision has been construed by the Custom Authorities in the same manner, in which it has been construed in the case on hand, for the last more than 40 years. All transactions have been made on this basis during all these years. The construction put by the Customs Authorities has come to be accepted by all concerned for such a long time and a new construction which unsettles the settled position cannot be made on the basis of an ingenuous argument, advanced by the learned Counsel for the petitioner. The law stands well settled on the point that the different interpretation should not be placed on the word of a provision which disturbs the course of construction which has continued unchallenged for a considerable length of time. It would, thus, mean that the valuation has to be made at the point of the time and place the goods are brought from the foreign land and are so placed from which they can be ordinarily sold. The wholesale cash price means the market price at the time and place of importation viz., the place from which the assignee can remove the goods and not the price paid for importing. Landing charges are required to be paid to the Port Trust Authorities and unless it is done so, the authorities do not allow the goods to be removed. Reference in this connection may be made to Byelaws 101 and 102 of the Bombay Port Trust Dock Byelaw 101 reads as under:
101. Goods shall not be removed from the Docks quays roads or sheds unless covered by a Customs Import Bill of Entry or Export Shipping Bill and upon production of the Trustees' receipt for wharfage viz.' the Import or Export Application duly endorsed as the case may be, and receipt for other charges they may be due upon the goods.
The Port Trust authorities recover the landing charges for stacking the goods and keeping them in safe custody under the statutory provisions. The charges so recovered are quantified by the Customs Authorities under various Notifications issued from time to time by Collector of Customs, Bombay under Section 14 of the Act, as already mentioned above.
23. Jurisdiction to determine the real value of the goods is vested by the Legislature in Customs Authorities and where that Officer acts in conformity with the statutory provision of law in arriving at his decision, Court cannot sit in appeal against it or re-try the question at issue vide Messrs Willaitiram Jaishiram v. Secretary of State AIR 1936 Sind 127.
24. Under the circumstances, we are firmly of the view that the customs authorities are justified in including the landing charges in the assessable value of the goods imported into India for the purpose of computation of the customs duty.
25. As regards refund, apart from the point that the writ is liable to be dismissed on the grounds of (i) not availing alternative remedy, and (ii) customs duty has been rightly received, it is liable to be dismissed for the following additional reasons: -A question does arise whether in the facts and circumstances of the case an order could be passed for refund of the amount in favour of the petitioner. Our answer to it is in the negative. The petitioners, while fixing the sale-price for rayon tyre cord and fabric must have taken into consideration, (a) cost price of wood pulp, (b) import duty, (c) customs duty, and (d) manufacturing cost and manufacturer's profit. It: is an admitted fact that the petitioner has included the amount of customs duty paid in the cost structure of the rayon tyre cord or fabric while passing the goods to the purchasers. In case of refund of illegally levied customs-duty on raw material, it should in all fairness normally be allowed to the customers of the finished product The refund of the amount, if allowed, would lead to illegal enrichment of the petitioner, which is not entitled to retain the amount, if the same has already been recovered from the purchasers while rayon or fabric had been sold. A writ cannot be issued in favour of the parties to unjustly enrich them. The view taker by the Customs Authorities cannot be said to be unreasonable The importers will be entitled to make windfall profits and unjust enrichment. The Central budget will have-to bear an unanticipated view of law which will have to be passed on to the tax payers and not to consumers. The original and real sufferer will have to suffer as the burden will have to be again borne by him by paying indirect taxes to the tune of the amount likely to be refunded to the petitioner.
26. For the aforesaid reasons, this writ petition stands and is hereby dismissed. In the circumstances of the case, the parties are left to bear their own costs.