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K. Ganga Setty Vs. the Collector of Customs, Madras - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtChennai High Court
Decided On
Case NumberO.S. Appeal No. 147 of 1953
Judge
Reported inAIR1957Mad19; (1955)2MLJ315a
ActsSea Customs Act, 1878 - Sections 19 and 167(8)
AppellantK. Ganga Setty
RespondentThe Collector of Customs, Madras
Appellant AdvocateK. Rajah Iyer, ;K.C. Jacob and ;S.K.L. Ratan, Advs.
Respondent AdvocateGovernment Pleader
DispositionAppeal allowed
Cases ReferredClements v. Smith
Excerpt:
.....exports (control) act (xviii) of 1947), sections 19 and 3(2)--fodder, bran and pollards or grain--oats--if fodder or grain--sea customs act (viii of 1878); when there is a statutory provision granting exemption to certain classes of goods, the question whether particular goods, would fall within that class or not must be finally decided by a competent court.; 'fodder' literally means food for cattle. oats are food for horses though they may also be used as food for men. when oats are imported as 'horse feed oats' they fall within the item 'fodder', entry no. 42 in part iv of the import trade control schedule corresponding to item 12(5) of the indian customs tariff, namely, 'fodder, bran and pollards' and no special licence is entry no. 32 of part iv of the same schedule, corresponding..........and notifications made and issued under the defence of india act.it is common ground that if the goods imported by the appellant fell within entry no. 42 in part iv of the import trade control schedule, corresponding to item 12 (5) of the indian customs tariff namely "fodder, bran and pollards", no special licence was necessary for the import of the goods. but, on the other hand, if the goods fell within entry no. 32 of part 4 of the same schedule, corresponding' to item 10 of the indian customs tariff, namely "grains", then a special licence was necessary.3. the documents filed in the case certainly disclose divergence of opinion between the different concerned authorities on the question whether cats, crushed or uncrushed, tell within the category of fodder or grains. we have on.....
Judgment:
1. This is an appeal from the judgment of Subba Rao J. on an application (4680 of 1952) filed by. the appellant under Section 45, Specific Relief Act, for the issue of a mandamus directing the Collector of Customs, Madras, to forbear from collecting or realising or taking any other steps whatever to recover the fines or penalties levied by the Assistant Collector of Customs by his order' dated 23-9-1952, confirmed, by the Collector of Customs on appeal, on 8-10-1952, in the following circumstances.

The appellant is the proprietor of a firm called Sri Balakrishna Flour Mills. He is a dealer in fodder and as such a regular importer of fodder from foreign countries. He placed an order through one V.S.L. Nathan, Indenting Agents, for the Import of "feed oats" from Australia. The goods arrived in Madras on 1-8-1952 and when the appellant attempted to clear the goods, the customs authorities insisted on the production of a licence to enable him to clear the goods.

As the appellant was unable to do so, on 23-9-1952, the Assistant Collector confiscated the goods under Section 167(8), Sea Customs Act and imposed a fine of Rs. 5000 in lieu of confiscation for clearance into town or a fine of Rs. 500 for reshipment to the country of origin, on the ground that the offence Of violation of Section 19. Sea Customs Act read, with Section 3(2), imports and Exports (Control) Act, 1947, had been committed.

The appellant appealed to the Collector of Customs. But the appeal was rejected. It was thereafter that the appellant filed the application under Section 45, Specific Relief Act out of which this appeal arises. Subba Rao J. dismissed the application.

2. The only question which arises in this case is whether it was necessary for the appellant to obtain a licence for the import of the goods nto this country. During the material period, imports were being regulated by the Government under rules and notifications made and Issued under the Defence of India Act.

It is common ground that if the goods imported by the appellant fell within Entry No. 42 in Part IV of the Import Trade Control Schedule, corresponding to item 12 (5) of the Indian Customs Tariff namely "fodder, bran and pollards", no special licence was necessary for the import of the goods. But, on the other hand, if the goods fell within entry No. 32 of Part 4 of the same schedule, corresponding' to item 10 of the Indian Customs Tariff, namely "grains", then a special licence was necessary.

3. The documents filed in the case certainly disclose divergence of opinion between the different concerned authorities on the question whether cats, crushed or uncrushed, tell within the category of fodder or grains. We have on record a letter dated 14-9-1951 from the Deputy Chief Controller of Imports, Madras, addressed to the appellant in which it is assumed that Feed Oats are classifiable under serial No. 42 and, therefore, covered by Open General Licence No. XXIII.

We may mention that this was in reply to a query from the appellant whether the appellant had to obtain a licence to import Feed Oats from Australia. A different view, however, was taken subsequently, a view expressed in a letter dated 8-1-1952 alleged to have been addressed by the Deputy Chief Controller of Imports to the appellant, the receipt of which is not admitted by the appellant. This letter runs thus;

"Please refer to this office letter of even No. 5732/A dated 14-9-1951 on the above subject.

In modification thereof, I write to inform you that CD "Peed oats" (i.e., whole grains), are classifiable under 10 I. C. T. corresponding to S. No. 32 of Part 4 I.T.C. Schedule and accordingly a licence is required for import of the goods (whole grains) (b) crushed feed oats (fodder) are classifiable under 12(5) I. C. T. corresponding to S. No. 42 of Part IV and are covered by Open General licence No. XXIII."

Subba Rao J. took the view that the question whether uncrushed oats are grain requiring a special licence, or fodder covered by the general licence, "necessarily will have to be decided by the Customs authorities." He was aware of the conflicting views expressed by the authorities themselves; but he observes,

"I cannot say that the Customs authorities acted or forbore to do anything which is clearly incumbent upon them, They are the authorities authorised to scrutinise the goods and to classify under what category they come. As I have already said, their classification of uncrushed feed oats as grain cannot be said to be either perverse or mala fide."

If the learned Judge meant that it is for the Government to make classifications of goods and to decide whether a particular class of goods could or could not be imported without a licence, we agree with him. If a particular commodity falls within an item or entry in the schedule containing the classification, then, of course, it will be governed by the policy which the Government choose to adopt in respect of that particular commodity.

If, for instance, there had been an entry "Peed oats" for any purpose, then obviously no one can complain. It would not be open to this Court to say that the Government should not have imposed the necessity of obtaining a licence for the import of this or that particular commodity. But it does not follow from this that if the Customs authority chooses to say for instance that hay is not fodder, theirs is the final word on the question. It may be that such a result would follow if there is a special statutory provision making the opinion of the authorities conclusive.

We asked the learned Government Pleader to ascertain from the Department if there is any statutory provision, any section of the Act or any rule or notification which declares the opinion of the authorities to be final and not open to judicial review. We understand that some time in 1955 there was an amendment of the schedule by inserting an entry regarding oats. Obviously this can have no retrospective effect.

4. When there is statutory provision granting exemption to certain classes of goods, the question whether particular goods would fall within that class or not must, in our opinion, be finally decided by a competent Court.

5. "Fodder" literally means food for cattle. "Feed" means inter alia "Horse's allowance of oats etc" (Concise Oxford Dictionary). Oats undoubtedly are food for horses though they may also be used as food for men. We are convinced on the evidence placed before us that in this case the oats were being imported for use as food for horses. In the letter dated 7-9-1951 addressed by the appellant to the Import Trade Controller, it is definitely stated that the imports of "Horse Peed Oats". In these circumstances we fail to see why the feed oats which the appellant wanted to Import do not fall within the item "fodder".

Assuming that oats as such might fall 'within one of the two entries, namely, grains and fodder, the purpose for which they were being imported should decide into which class they fall. It is well known that oats are not generally used in this part of the country as food for men. Moreover, as we have already mentioned, there is clear evidence that in this case they were being imported purely as food for horses, that is, as fodder.

6. Mr. Rajah Aiyar cited to us the decision in Clements v. Smith, (1860) 121 ER 431 (A). That case related to the construction of Section 32 of the General Turnpike Act which enacted inter alia "that no toll shall be demanded or taken" on any turnpike road, for any horse, beast or other cattle or carriage employed in carrying or conveying, having been employed only in carrying or conveying on the same day, any hay, straw, fodder for cattle & corn in the straw, which has grown or arisen on land or ground in the occupation of the owner of any such hay, straw, fodder or corn in .the straw..... "A horse & cart passed through a toll-gate, carrying thrashed barley, which had grown on land in the occupation of the owner, to a mill to be ground into meal for feeding the owner's pigs. It was held that they were exempt from toll under the enactment as the barley came within the description of "fodder for cattle". Cockburn C. J. said:

"I think that everything which is ultimately destined to be used as food for cattle is fodder for them."

In his opinion the exemption extended to corn destined for the consumption of cattle. We think that this case is in point. As it is clear -- and it is not denied by the Government -- that the oats which were imported by the appellant were imported as food for horses, that is, cattle, they would fall within entry 42 of the schedule. No licence was required for their import. The Collector of Customs had no power or jurisdiction to seize them and to impose a fine or penalty on the appellant for having imported them without a licence.

7. In the result the appeal is allowed end there will be a direction in the nature of mandamus prohibiting the Collector of Customs and his subordinates from collecting or taking any steps whatsoever to recover the fines or penalties purported to be levied on the appellant.

8. In this view it is not necessary to deal with the question whether even assuming that a licence was necessary, the action of the appellant was such as to merit the imposition of a large fine or penalty.

9. There will be no order as to costs of any party.


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