Rajagopala Ayyangar, J.
1. This is an appeal against the Judgment of Panchapakesa Aiyar J. allowing in part an application filed under Section 45 Specific Belief Act, and issuing a Writ in the nature of mandamus directing the Collector of Customs, Madras, to release 12 Diesel Engines belonging to the respondent (applicant in the application) and imported by him on the respondent's paying the entire customs duty payable on the value of the engines plus 12 1/2 per cent of the entire value of the goods and setting aside the order of confiscation which has been passed by the Customs Authorities in respect of these engines. The Collector of Customs his filed this appeal while, the respondent who filed the application for the writ of mandamus has filed a memo of cross-objection fn which he has prayed that the learned Judge should not have imposed a fine of 12 1/2 per cent on the value of the goods which the learned Judge made a condition for their clearance.
2. The facts giving rise to these proceedings are briefly these: The applicant for the writ of mandamus is a firm of importers by name Lala Oopikissen Gokul Dass. A public, notice of the Government of India, Ministry of Commerce, dated 11-9-1950, was issued inviting the attention of the importers to the fact that the Government had decided to allow the import of Diesel engines falling under serial No. 30 from all sources of import on the basis set out in the said notice during the period July to December 1959.
This notification after classifying established importers into two categories, went on to state la para 3:
'3. Licences for diesel engines will be granted under separate quotas for Imports from the Dollar area, Switzerland, Japan and the soft currency Area respectively. Each such quota will be calculated in the manner noted down in Public Notice No. 14 I. T. C. (PN)/50 dated 15-6-1950 on the basis of the quota percentages stated below as applied to half of best years imports of Diesel engines and parts thereof falling under S. No. 30 of Part II of the Import Trade Control schedule.
(a) Approved Importers: Quota
(i) Diesel engines of 0 to, 10 H. P. 100 per cent
(ii) Diesel engines of 11 to 20 H. P. 10 per cent
(i) Diesel engines of 0 to 10 H.P. 33-1/3per cent
(ii) Diesel engines of 11 to 20 H. P. 5 per cent'
and in para 4 which is the relevant clause for this case
'It has further been decided that licences for imports of Diesel engines of more than 20 H. P. will be granted freely from all sources.'
3. Messrs. Turner Hoare and Co. Ltd, who were one of main Importers of Diesel Engines into this country and with whom the respondent-firm had dealings approached Mr. Phansi, Principal Appraiser, Machinery Department Customs House, Bombay, and made an enquiry as to whether National Gas & Oil Engine Co.'s Horizontal engines of OB or OBSE type rated at 20/22 B. H. P. fell within paragraph 4 of the Ministry of Commerce Circular referred to above. The firm was orally assured that it was so and desiring to have a confirmation in writing despatched a letter dated 19-10-1950 to the Assistant Collector of Customs setting out this information. The firm also stated that these engines of the National Gas & Oil Engine Co. and hitherto been imported as 20/22 B. H. P. and no alterations in design had been made since the hew import regulations. They further requested a confirmation in writing to enable them to cable their indents to the makers.
A formal reply dated 15-11-1950 was received by this firm in which it was stated that the oil engines of the type OB or OBSE 20/22 H. P. could be imported against the licence for Diesel engines above 20 H. P. Relying upon the oral assurance to Messrs. Turner Hoare and Co, of which they were informed the respondent firm applied for the grant of two import licences authorising them to import Diesel engines above 20 H. P. The licences were granted by orders dated 26-10-1950 and 11-11-1950 by the Office of the Deputy Chief Controller of Imports, Calcutta, the first licence enabling goods of the value of Rs. 2,00,000, to be imported while the second permitted importation of goods of the value of Rs. 6,00,000. The description of the goods was stated in both the licences to be 'engines above 20 H. P.'
4. Pursuant to these licences, orders were placed by the respondent-firm with the Messrs. Turner Hoare and Co. Bombay, who were the sole agents in India for the products of the National Gas and Oil Engine Co., Ltd. London. Those orders which related to 12 units of OBSE type 20/22 B. H. P., were duly accepted & executed by, the shippers in the United Kingdom. The goods were shipped to Madras Fort for four steamers which reached Madras on 8th January 22nd January, 13th February & 16th March 1951. The respondent firm duly filed five bills of entry or clearing these goods which had been landed from the ships. As nothing was done on the first bill of entry which had been filed as early as on 6-12-1950, Messrs. Turner Hoare and Co., addressed a letter on 14-2-1951 to the Assistant Collector of Customs, Madras, enquiring as to the reasons for the delay in the clearance.
Messrs. Turner Hoare and Co., drew the attention of the Assistant Collector of Customs, Madras, to the fact that even before accepting the indent the Technical Engineer of their firm Mr. Emerson had visited the Customs department at Bombay and had ascertained and got confirmation from the authorities that the engines which were the subject of import fell within paragraph 4 of the notification of the Ministry of Commerce dated 11-9-1950. They also enclosed copies of the communications which passed between the parties and which have been referred to already. The respondents also obtained through Messrs. Turner Hoare and Co., a certificate from the manufacturers that O. B. S. E. type of engines were rated to develop 22 B. H. P. maximum when running at a speed of 375 R. O. M. and this was placed in the hands of the Customs authorities.
Notwithstanding all these, the five bills of entry relating to these 12 units were returned on 19-5-1951 to the clearing agents of the respondents with the remark that there had been an evasion of the Import Trade Control Regulations under the Import and Export (Control) Act, 1947, read with the Sea Customs Act confiscating the goods and stating that they would be released only on payment of varying amounts of fines ranging from Rs. 2800 to Bs. 44,500 in respect of the different bills of entry, the total amount of the fines which the respondent would have to pay for dealing being Rs: 70550. The respondent firm did their best by correspondence and personal interviews to have these fines and penalties cancelled and the clearance of the articles imported permitted. But alltheir attempts ended in failure.
5. The respondent firm thereupon took out a notice of motion, Appln. No. 3302 of 1952 in the Original Side of this Court under Section 45, Specific Relief Act, for an order directing the Collector of Customs and his subordinates to refrain from collecting or taking any steps to recover the fines or penalties levied on the respondent in respect of the bills of lading dated 6-12-1950, 20-1-1951 and 19-3-1951 or from dealing with in any manner the 12 Diesel Engines covered thereby and for the issue of orders to the Collector of Customs requiring him to permit the clearing of these goods by them without any penalty or fine subject only to payment of such duties or other charges as might be leviable and recoverable in due course of law.
6. in answer to this application the Collector of Customs raised in the main two defences. The first was that the court had no jurisdiction to pass the order prayed for because the Sea Customs Act, 1878, under which the action of the Customs authorities was based, was a comprehensive enactment and a complete code which ousted the jurisdiction of any other court or Tribunal to interfere with the orders passed by the authorities acting under the said enactment. It was also stated in further support of this point that the respondent firm had not availed themselves of the rights of appeal and revision which had been provided for by Sections 188 and 191 respectively of the Sea Customs Act and that without availing themselves of these remedies, the respondent-firm were disentitled to approach this court. On the merits it was stated that the goods imported were in fact Diesel engines of not more than 20 H. P. and therefore the respondent firm were not entitled to any relief. It was stated that the descriptive literature produced by the importers themselves showed that the engines were rated to develop 20 H. P. for continuous operation though they were capable of carrying an overload of 10 per cent for one hour, i. e., of developing 22 H. P. maximum in intermittent running only and that on this ground the engines were regarded as of 20 H. P. and that the licences obtained by the importers for Diesel engines of 'over 20 H. P.' would consequently not cover the goods which were actually imported.
No answer was furnished to the statement that Messrs. Turner Hoare and Co., who had imported these goods for the respondents had approached the Customs Authorities at Bombay and had been assured by them that the Engines now in question were classified as over' 20 H. P. nor was any answer attempted to the challenge on the legality of the fines imposed grounded on the inequality in the varying amounts levied on the different bills of entry for no conceivable reason. The appellant who was the respondent in the application prayed that the petition might be dismissed. The application was heard by Panchapakesa Aiyar J. and before him the defence of the appellant was as set out above. The learned Judge rejected most of the contentions of the respondents, but held that as the correspondence clearly established that there was no 'mens rea' on their part of the fine imposed was excessive.
The learned Judge said:
'I am satisfied that the order of the respondent-- the Collector of Customs -- is not in consonance with right and justice, and so, I must givehim a direction which will be in consonance withright and justice. When two other trained customs Collectors had held that licences to importDiesel engines above 20 H. P. would cover theimport of Diesel engines of 20 to 22 H. P. It is Obvious that, ordinarily a lay individual, like thepetitioner, cannot be expected to know that itwill be contrary to the licences to import suchengines. It is a case for a reasonable penalty andnot for a draconian fine equal or almost equalto the value of the engines. This becomes evenmore reasonable when we remember that themakers and the manufacturers certified that theengines could generate power upto 22 H. P.and it is the maximum power which has to betaken into consideration in such cases for purposes of awarding punishment.'
Proceeding on these lines the learned Judge held first that a fine of 12 1/2 per cent of the entire value of the engines was a reasonable penalty and fixed this as the sum on the payment of which the goods should be released to the importers.
7. It is from this order of the learned Judge that this appeal has been preferred by the Collector of the Customs and the memo of objections has been filed by the importers.
8. Before considering the merits of the case, it is necessary to deal with the contention of the learned Advocate General regarding the jurisdiction of this Court to deal with any case raising the question of the validity of confiscations or penalties imposed by the Sea Customs Act, 1878, read with the Imports and Exports (Control) Act (18 of 1947). The argument is this: Under Section 3(1), Imports and Exports (Control) Act, 18 of 1947, the Central Government may by an order published in the Official Gazette, make provision for prohibiting, restricting or otherwise controlling the import, export, carriage coastwise or shipment as ships' stores of goods of any specified description. Under Section 3(2)
'all goods to which any order under Sub-section (1). applies shall be deemed to be goods of which the import or export has been prohibited or restricted under Section 19 of the Sea Customs Act, 1878, and all the provisions of that Act shall have effect accordingly, except that Section 183 thereof shall have effect as if for the word 'shall' therein the word 'may' were substituted.'
Section 4 of this Act also made provision that
'all orders made under Rule 84 of the Defence of India Rules or that rule as continued in force by the Emergency Provisions (Continuance) Ordinance, 1946, and in force immediately before the commencement of this Act shall, so far as they are not inconsistent with the provisions of this Act, continue in force and be deemed to have been made under this Act.'
Under Rule 84 of the Defence of India Rules referred to, the main notification providing for the licensing of the imports of Diesel engines was one dated 1-7-1943. Under the terms of this Notification No. 23 I. T. C./43 the Central Government
'prohibited the bringing into British India, by Sea, land or air from any place outside India of any goods of the descriptions specified in the schedule annexed 'subject to certain exceptions of which the relevant one is para X' any goods, of the descriptions specified in part II of the schedule which are covered by a special licence issued by the Deputy Chief Controller of Imports at Calcutta appointed in that behalf by the Central Government'
and Diesel engines are listed as item 30 in this part.
The subsequent notification relating to this matter contained in the press release of the Government of India dated 11-9-1950 has already been set out. It would be seen that under the terms of this notification of 1950 Diesel engines were classified under three heads depending upon their horsepower. The first category comprises engines developing 0 to 10 H. P. the second those developing 11 to 20 H. P. and the last those which develop over 20 H. P. It was in respect of the last class that licences were freely granted from all sources. The contention urged on behalf of the Government is that the engines imported by the respondents fall within the second category of engines developing not more than 20 H. P. and are not covered by the licences granted to the importers. As sub Section (2) of Section 3, Imports and Exports (Control) Act, 1947, renders the importation of goods not covered by the licence a violation of Section 19, Sea Customs Act, reference has to be made to the provisions of the Sea Customs Act to determine whether any order passed in the present case is subject to the control of this court.
9. Section 18, Sea Customs Act, 1878, specifies the goods importation of which is completely prohibited. This need not be further considered since there is no absolute prohibition in respect of the import of diesel engines into India, Section 19 deals with the restrictions on the bringing or taking by sea or by land goods of any specified description into the State across any customs frontier as defined, by the Central Government and a contravention of Section 3(2), Import and Export (Control) Act, is statutorily made a violation of Section 19, Sea Customs Act, 1878.
Section 19-A which is a rider to Sections 18 and 19 runs in these terms:
''19-A (1) Before detaining any such goods as are or may be specified in or under Section 18 or Section 19, as the case may be, or taking any further proceedings with a view to the confiscation thereof under this Act, the Chief Customs Officer or other officer appointed by the Chief Customs authority in this behalf may require the regulations under this section, whether as to information, security, conditions or other matters, to be complied with, and may satisfy himself in accordance with those regulations that the goods are such as are prohibited to be imported.
(2) The Central Government may make regulation, either general or special, respecting the detention and classification of goods the importation of which is prohibited, and the conditions if any, to be fulfilled before such detention & confiscation, & may, by such regulations determine the information, notices and security to be give and the evidence requisite for any of the purposes of this section and the mode of verification of such evidence.
(3) Where there is on any goods a name which is identical with, or a colourable imitation of, the name of a place in the United Kingdom, India or Burma, that name, unless accompanied in equally large and conspicuous letters, in the English language, by the name of the country in which such place is situate, shall be treated for the purpose of Sections 18 and 19 as if it were the name of a place in the United Kingdom, India, or Burma.
(4) Such regulations may apply to all goods the importation of which is prohibited by Section 18 or under Section 19, or different regulations may be made respecting different classes of such goods or of offences in relation to such goods.
(5) The regulations may provide for the informant reimbursing any public officer and the Central Government all expenses and damages incurred in respect of any detention made on his information and of any proceedings consequent on such detention.
(6) All regulations under this section shall be published in the Gazette of India and, with the consent of the State Government concerned, in the Official Gazette of each State.'
Where there is a violation by an importer of the restrictive provisions imposed by Section 19, it constitutes an offence dealt with by Chapter XVI. This chapter is headed 'offences and Penalties' and consists of two Sections 167 and 168. Section 167 enumerates the several offences of which a person might be guilty for violation of the various sections of the Act and provides the punishments for each. The entry relevant in the present context is No. 8 which reads as follows:
The other relevant provisions of the Sea Customs Act are Sections 182, 183, 184, 188 and 191 and they run as follows:
'182 in every case, except the cases mentioned in Section 178, Nos. 26, 72, and 74 to 70, both inclusive, in which under this Act, anything is liable to confiscation or to increased rates of duty or any person is liable to a penalty such confiscation, increased rate of duty or penalty may be adjudged
(a) without limit, by a Deputy Commissioner or Deputy Collector of Customs or a Customs Collector;
(b) upto confiscation of goods hot exceeding two hundred and fifty rupees in value, and imposition of penalty or increased duty, not exceeding one hundred rupees, by an Assistant Commissioner or Assistant Collector of Customs;
(c) upto confiscation of goods not exceeding fifty rupees in value, and imposition of penalty or increased duty not exceeding ten rupees, by such other subordinate officers of customs as the Chief Customs, authority may, from time to time, empower in that behalf by virtue of their office.
Provided that the Chief Customs authority may, in the case of any officer performing the duties of a Customs Collector limit his powers to those indicated in Clause (b) or in Clause (c) of this section, and may confer on any officer, by name or in virtue of his office, the powers indicated in Clause (a) (b) or (c) of this section.
183: Whenever confiscation is authorised by this Act, the officer adjudging it shall give the owner of the goods an option to pay in lieu of confiscation such fine as the officer thinks fit.
184 : When anything is confiscated under Section 182, such thing shall thereupon vest in Government. The officer adjudging confiscation shall take and hold possession of the thing confiscated, and every officer of the Police, on the requisition of such officer shall assist him in taking and holding such possession.
188 : Any person deeming himself aggrieved by any decision or order passed by an 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 directs, to any officer of customs not inferior in rank to a Customs Collector and empowered in that behalf by name or in virtue of his office by the Central Government.
Such authority or officer may thereupon make such further enquiry and pass such order as he thinks fit, confirming, altering or annulling the decision or order appealed against:
Provided that no such order in appeal shall have the effect of subjecting any person to any greater confiscation, penalty or rate of duty than has been adjudged against him in the original decision or order.
Every order passed in appeal under this section shall subject to the power of revision conferred by Section 191, be final.
191. 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'.
10. The argument based upon these provisions is that the Sea Customs Act is complete Code dealing with the subject matter of importation of goods across the customs frontiers of India and that the procedure prescribed and the tribunals erected to deal with it are the sole repositories of jurisdiction for administering that law and that no Court in the country has any power to deal with orders passed by these several authorities. It is contended that when a Customs Officer passes an order under Section 167 (8) the only remedy open to the aggrieved importer or exporter is to prefer an appeal under Section 188 and that he cannot approach the Courts for redress against the acts of the officer. Similarly it is contended that as under the terms of Section 188, Sea Customs Act, every order passed in appeal by the appellate authority, shall subject to the power of revision vested in the Central Government by Section 191, be final this prohibits the Courts from interfering with the orders passed, the only remedy of the aggrieved party being an application in revision to the Central Government and that those orders of the Government are final and cannot be questioned in Courts.
11. As this argument was in great part rested upon the decision of the Privy Council in --'Secy. of State v. Mask and Co. , it is necessary to deal with the case in some detail. The respondents before the Privy Council were a firm of merchants who in the course of business Imported betel nuts into British India. Two consignments of such nuts were imported by sea to Pondicherry and thereafter, by rail to the respondents' place of business in the South Arcot district. There were different rates of duty and tariff values relating to raw betel nuts and to boiled betel nuts. The contention of the respondents was that the goods which they imported were raw betel nuts whereas the Customs authorities took the view that the duty payable on the goods imported by the respondents must be assessed on the basis of, their being boiled betel nuts. Samples were examined by the Assistant Collector of Customs, Madras, and assessment was made on the basis of the goods being boiled betel nuts. An appeal was taken by the respondents against the Assistant Collector to the Collector of Customs under Section 188, Sea Customs Act, but the appeal was dismissed. A revision petition was filed against that order to the Central Government and this was also thrown out.
The respondents then filed a suit out of which the proceedings before the Privy Council arose, in the Court of the Subordinate Judge of Cuddalore against the Secretary of State for India to recover the excess amount alleged to have been collected from them by levying duties on these goods oh the one basis and not on the other. Among the issues in the case was issue No. 3 which raised for consideration the question, whether the Court had jurisdiction to entertain the suit or whether the suit was barred by the provisions of the Sea Customs Act. The Subordinate Judge held that the Court had no jurisdiction to entertain the suit and dismissed It. On appeal to the High Court, this Court allowed the appeal and remanded the suit for, consideration by the Subordinate Judge on the merits. As against this order of remand, an appeal was taken by the Secretary of State to the Privy Council and the question of Jurisdiction of the Subordinate Judge to entertain the suit in the circumstances was considered by their Lordships.
Their Lordships after setting out the terms of Sections 182, 186, 188, 189, 190, 191 and 193 dealt with the contentions of the Secretary of State in these terms:
'It is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure...... By Sections 188 and 191 a precise and self-contained code of appeal is provided in regard to obligations which are created by thestatute itself, and it enables the appeal to becarried to the Supreme head of the executiveGovernment. It is difficult to conceive whatfurther challenge of the order was intended tobe excluded other than a challenge in the civil-courts.
Further it is to be noted that the same finality clause applies equally to appeals against adjudications under Section 182 and to appeals against decisions or orders as to the rate of duty leviable under the tariff; their Lordships are unable to construe this clause differently according as it applies to these two classes of appeals, as apparently the High Courts were prepared to do...... Their Lordships are of opinion that in this case the jurisdiction of the Civil Courts is excluded by the order of the Collector of Customs on the appeal under Section 188, and it is unnecessary to consider whether, prior to taking such appeal under Section 188 the respondents would have been entitled to resort to the civil courts, or whether they would have been confined to the right of appeal under Section 188.
The determination of this question must rest on the terms of the particular statute which is under consideration, and decisions on other statutory provisions are not of material assistance, except in so far as the general principles of construction are laid down. The main principles to be observed in the present case are to be found in the well known judgment of Willes J. in -- 'Wolverhampton New Waterworks Co. v. Hawkesford', (1859) 6 C.B.336 (B), which was approved of in the House of Lords in -- 'Neville v. London 'Express' Newspaper Ltd.', 1919 AC 368 (C). The question is whether the present case falls within the third class stated by Willes J. viz., 'where the statute creates a liability not existing at common law, and gives also a particular remedy for enforcing it...... With respect to that class it has always been held, that the party must adopt the form of remedy given by the statute.' It has been held that the jurisdiction of the civil courts is excluded in three cases in which an appeal under Section 188 had been taken.'
Then reference was made to the decision of this court in which such a view had been entertained. (12) It will be noticed that there are two points of distinction between the case before the Privy Council and the present one. In the first place, the decision of the Privy Council related to the jurisdiction of a subordinate court while in the present case we are concerned with the powers of the High Court which is vested with jurisdiction under Article 226 of the Constitution to deal with executive and quasi-judicial authorities acting under the provisions of a statute. The mere fact that the jurisdiction of an ordinary civil court by way of a suit is excluded would not necessarily deny to this Court the power to protect the citizens of India in respect of their freedom of trade or their right to property and against improper exercise of executive or judicial or quasi-judicial powers.
In the second place. It will be noticed that the Privy Council had to deal with a case where the Importer had availed himself of the remedy of appeal under Section 188, Sea Customs Act, in fact the argument on behalf of the Secretary of state which is set out in the earlier part of the judgment of the Privy Council was that the conduct of the Importer in filing an appeal and revision under Sections 188 and 191 of, the Act without resorting to the civil courts amounted to an election of remedies. In the present case the importer has not availed himself of the remedy by way of appeal and revision provided for by the Sea Customs Act. We do not lay stress upon this point though it is one which arises on the language of the judgment of the Privy Council. Lastly their Lordships have excepted cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. We will consider at a later stage as to whether on the facts of the present case this exception is not attracted.
13. Reliance was placed by the learned Advocate-General on a decision of a Full Bench of this court in the -- 'Secy. of State v. Alla Jagannadham AIR 1941 Mad 530 (D), in which the question considered was the right of a civil court to set aside an order for surcharge made under the Madras Local Boards Act. The learned Judges accepted as correct the proposition laid down by Varadachariar J. in -- 'Kamaraja Pandiya Nicker v. Secy. of State', AIR 1936 Mad 269 (E), that
'where a person's liberty or property is interfered with under colour of statutory powers, he has a cause of action which the civil courts are bound to entertain unless a bar to such entertainment has been enacted by express legislation or by necessary implication.'
They held on the facts there that as the statute created a liability not existing at common law, the particular remedy conferred by the. statute for enforcing such rights was the sole and exclusive remedy to a party aggrieved by it.
14. The question of the power and jurisdiction of the High Courts to interfere with and to set aside the orders of the Customs authorities acting under the Sea Customs Act came up for consideration before the Calcutta High Court in a case reported in -- 'Soorajmull v. Asst. Controller of Customs', : AIR1952Cal103 (F). and on an appeal in -- 'Asst. Collector of Customs v. Soorajmull', : AIR1952Cal656 (G). It was an application under Article 226 of the Constitution and Section 45, Specific Relief Act, for a direction to the Collector of Customs prohibiting the authorities from exercising jurisdiction to call upon the applicant for the production of an import licence other than the licence already produced by him and for directing refund of the fines alleged to have been collected illegally by way of extra duty on certain drums of lubricating oil. The question before the customs authorities was whether the oil in question was or was not lubricating oil and this depended upon- the exact flash point of the commodity. It was pointed out on behalf of the Customs authorities that it was for them to make a proper classification of the goods under the Sea Customs Act and to satisfy themselves that the goods were such which could be permitted to be imported.
Bose J. before whom the matter was heard in the first instance came to the conclusion that the procedure adopted by the Customs authorities was in violation of the principles of natural Justice and he held that a writ of certiorari would lie even though there might be an alternative remedy by way of appeal under the provisions of the Sea Customs Act. Dealing with the contention that the court had no jurisdiction to grant writs of mandamus or certiorari to the Collector of Customs, and the bar said to be imposed by Section 188, Sea Customs Act, the learned Judge held that the Customs authorities were not acting in pursuance of the Act or statute but arbitrarily disregarding and ignoring the provisions of the Statute.
The learned Judge said :
'It was contended by the learned counsel for the petitioner that Article 226 of the Constitution has vested the High Court with supreme and unqualified power to issue the prerogative writs in proper cases. This power is not subject to any other provisions of the Constitution nor subject to the provisions of any law. Article 372 provides that all laws in force are subject to the provisions of the Constitution. Therefore in so far as Section 198 (of the Sea Customs Act) purports to impose any fetter or restriction oil the exercise of the absolute and unqualified power of the High Court as contained in Article 228 it must be held to be void to the extent of the inconsistency or repugnancy. In my view Section 198 only imposes a bar or disability on the person who seeks to commence proceedings in a court of law but it does not fetter or restrict the power of the High Court or affect the jurisdiction of the High Court in any way. If however it would tend to affect the power of the court it would be void to that extent.'
This decision was affirmed by a Bench consisting of Harries C. J. and Bannerjee J. The contention before the Bench was that the Assistant Collector of Customs when he imposed the fines or levied additional duties was performing a purely administrative act and therefore no writ of certiorari could lie and that further as this was purely an administrative act there was no question of the importer being heard and the failure to give an opportunity to be heard could not 'affect the validity of the proceedings. The learned Judges dealt with these points and held that the language of Section 167 and provisions in Chapter 17 make it clear that the officers were acting at least in a quasi-judicial capacity and agreeing with the view of Bose J. that the action of the Customs Authorities was both arbitrary as well as perverse affirmed the decision granting the relief to the importer.
15. Arising out of the last point the question that has next to be considered is the nature of the Jurisdiction vested in the customs authorities under the provisions set out above. This has been the subject of consideration at the hands of the Supreme Court in a case reported in --'Maqbool Hussain v. State of Bombay', : 1983ECR1598D(SC) (H). The learned counsel for the respondents relied upon this decision to show that it involved such a wide departure from what was accepted by the Privy Council in ', as to the function and scope of the powers of the Customs Authorities in the matter of ordering confiscation and imposing fines and penalties that it must now be taken that the existence of the remedies provided by the Act is not a bar at all to the exercise of jurisdiction by the civil courts. The argument was this :
16. The entire basis of the judgment of the Judicial Committee in ', was in their considering the customs authorities as judicial functionaries vested with the power of adjudication. In order to attract the third head dealt with by Willes J. In (1859) 6 CB 336 (B)', it is necessary to posit that a real remedy has been given for the enforcement of the statutory liability or right created by the law. If the power to deal with the rights so created or to afford reliefs, to the injury inflicted is vested merely in an administrative officer, his adjudication or his order would be provisional only and could be called in question at the suit 06 any individual affected thereby. The point for our consideration is whether the decision of the Supreme Court in : 1983ECR1598D(SC) (H)', would lead to such a result. The question before the Supreme, Court was whether the confiscation effected by the Customs authorities proceeding under the sections set out above was a bar to the prosecution of that person under other laws. The facts in the case were as follows : The appellant, a citizen of India, arrived in Bombay from Jeddah, and on landing did not declare that he had brought with him any gold. But he was found in possession of 107.2 tolas of gold. The attempt to bring this gold into India fell within the preventive and other sections of the Sea Customs Act and was also an offence under Section 8, Foreign Exchange Regulation Act 7 of 1947. The Customs authorities at Bombay took action under Section 167(6), Sea Customs Act, and confiscated the gold giving to the owner the option under Section 183 of the Act of claiming the gold on payment of a fine of Rs. 12000. The appellant did not claim the gold; nor did any other person do so. A complaint was filed against the appellant for having committed an offence under Section 8, Foreign Exchange Regulations Act. The High Court of Bombay was thereupon moved by the appellant to transfer the case pending against him to the High Court under Article 228 of the Constitution contending that his prosecution in the court of the Chief Presidency Magistrate was in violation of the fundamental rights guaranteed to him under Article 20(2) of the Constitution.
The proceeding against the appellant was withdrawn to the High Court and after hearing, the learned Judges of the Bombay High Court decided against the appellant on the question of the Constitutional law raised by him and directed the case to go back to the Chief Presidency Magistrate for disposal according to law. The accused thereupon filed an appeal to the Supreme Court for this order. The question raised for consideration by the Supreme Court was whether by reason of the confiscation effected by the Customs authorities of the gold, the appellant was entitled to claim that he should not be prosecuted under the Foreign Exchange Regulations Act. Their Lordships held that the proceedings relating to the confiscation of the gold were not a bar to the prosecution of the appellant for violation of the Foreign Exchange Regulation Act. Dealing with the scope of Article 20(2) of the Constitution as confined to cases of a double Jeopardy both proceedings being before a court of law or a judicial tribunal, they reached the conclusion that the proceedings which led to the confiscation were not before a judicial tribunal.
After setting out the provisions of the Sea Customs Act, their Lordships said :
'All this is for the enforcement of the levy of and safe-guarding the recovery of the sea customs duties. There is no procedure prescribed to be followed by the Customs Officer in the matter of such adjudication and the proceedings before the Customs Officers are not assimilated in any manner whatever to proceedings in courts of law according to the provisions of the Civil or Criminal Procedure Code. The customs officers are not required to act judicially on legal evidence tendered on oath and they are not authorised to administer oath to any witness. The appeals if any, lie before the Chief Customs Authority which is the Central Board of Revenue and the power of revision is given to the Central Government which certainly is not a Judicial authority..... All these provisions go to show that far from being authorities by any rules of evidence or procedure established by law and invested with power to enforce their own judgments or orders the Sea Customs authorities are merely constituted administrative machinery for the purpose of adjudging confiscation, increased rates of duty and penalty prescribed in the Act.
The same view of the functions and powers of sea customs officers was expressed in a decision of the Bombay High Court to which our attention was called........ We are of the opinion that the Sea Customs Authorities are not a judicial tribunal and the adjudging of confiscation, increased rate of duty or penalty under the provisions of the Sea Customs Act do not, constitute a Judgment or order of court or judicial tribunal necessary for the purpose of supporting a plea of double jeopardy.'
On this view their Lordships held that the appellant could not be said to have been prosecuted and punished by the Customs Authorities for the same offence with which he was charged before the Chief Presidency Magistrate and consequently dismissed the appeal.
17. This decision has been relied on by the learned counsel for the importers as departing from the manner in which the Judicial Committee in ', understood the function of the customs authorities and Tribunals and as leading to the conclusion that the tribunals constituted under the Sea Customs Act are really administrative tribunals whose creation and orders cannot oust the jurisdiction of courts. We do not agree in this extreme contention that the decision of the Supreme Court decides that the proceedings before the Customs authorities are purely administrative. The Supreme Court here was concerned merely with the question as to whether these tribunals were courts of law or judicial tribunal so as to render the proceedings and the punishment inflicted by them a bar to a fresh prosecution under the ordinary law of the land in the regular courts. What their Lordships decided was that the adjudication by the customs authorities were not before courts of law or before judicial tribunals (sic). To that extent it must be recognised that the decision marks some departure from what the Privy Council understood to be the nature of these functionaries in '. But in our opinion this does not enlarge the jurisdiction of this Court to interfere with the acts or orders of these authorities and the applicant has still to establish that those authorities have either misapplied the provisions of the Act or disregarded the rules or regulations or have not acted in conformity with the principles of natural justice.
18. The learned Advocate-General also relied on certain of the earlier decisions of the Supreme Court in which observations are to be found limiting the jurisdiction of this court in regard to the exercise of the power under Article 228 ofthe Constitution and relying on them he raiseda contention that in the absence of a total lackof or excess of jurisdiction or cases where therehas been a violation of the principles of naturaljustice this Court would have no jurisdiction tointerfere with such orders and that the mere factthat an order is erroneous in law on the properconstruction of the relevant notifications or isotherwise unjust would not be a ground whichwould attract the jurisdiction of this court. Inour opinion this line of reasoning is no longeropen in view of the decision of the SupremeCourt in -- 'T. C. Basappa v. T. Nagappa', : 1SCR250 (I). Mukherjea J. delivering thejudgment of the Court said after referring toseveral of the earlier decisions to which ourattention was Invited by the learned Advocate-General :
'The language used in Articles 32 and 226 of our Constitution is very wide and the powers of the Supreme Court as well as of all the High Courts in India extend to issuing of orders, writs or directions Including writs in the nature of 'habeas corpus', mandamus, quo warranto, prohibition and certiorari as may be considered necessary for enforcement of the fundamental rights and In the case of the High Courts, for other purposes as well. In view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these Writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law.
One of the fundamental principles in regard to the issuing of a writ of 'certiorari' is that the Writ can be availed of only to remove or adjudicate on the validity of judicial acts. The expression 'judicial acts' includes the exercise of quasi-judicial functions by administrative bodies or other authorities or persons obliged to exercise such functions and is used in contrast with what are purely ministerial acts....
The second essential feature of a writ of 'certiorari' is that the control which is exercised through it over judicial or quasi-judicial tribunals or bodies is not in an appellate but supervisory capacity.
In granting a writ of 'certiorari' the Superior Court does not exercise the powers of an appellate tribunal. it does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunals........ An error in the decision or determination itself may also be amenable to a writ of 'certiorari' but it must be a manifest error apparent on the face of the proceedings, e.g., when it is based on clear Ignorance or disregard of the provisions of law. In other words it is a patent error which can be corrected by certiorari but not a mere wrong decision.'
It is therefore clear that the Jurisdiction of the Court is not confined merely to cases of excess or lack of jurisdiction of these authorities but extends also to the correction of errors apparent on the face of the record.
19. We might now set out the result of the above discussion of the authorities :
1. Even the ordinary civil courts would have jurisdiction to entertain suits and afford relief against the acts or orders of the Customs authorities where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure '.
2. If the above were established the aggrieved party is not bound to pursue the statutory remedies provided by Sections 188 and 191, Sea Customs Act, and the fact that he has not done so is no bar to the jurisdiction of the civil courts.
3. In our opinion it also follows that if the above were established, the right to resort to the civil courts would not be barred even if these statutory remedies were availed of for the same infirmity would attach to the final orders as would apply to the original one.
4. The jurisdiction and powers of the High Court under Article 228 of the Constitution would be wider and would cover not merely the cases set out in paragraph (1) but also those where the order of the authority is vitiated by error apparent on the face of the record. It is neither possible nor desirable to define in precise language the circumstances which would Justify the Interference by this Court. But broadly speaking we are of the opinion that each case must be considered on its merit and. In the absence of excess or lack of Jurisdiction or the violation of the principles of natural Justice or error apparent on the face of the record in the proceedings or orders of these authorities or tribunals, this Court would not interfere. In other words the grounds which would attract the Jurisdiction of this Court under Article 226. In the case of orders of the Customs authorities acting under the Sea Customs Act are precisely the same as those which apply to authorities and tribunals functioning under other enactments.
20. We are also clear that if a party were able to establish a case of the type above mentioned, the fact that he has not availed himself of the remedies by way of appeal or revision provided for by the Sea Customs Act by Sections 188 and 191 is not a bar to the maintainability of the application or the granting of relief to such applicant. The preliminary objection to the jurisdiction of this court to interfere with the orders of the customs authorities must be repelled.
21. Before dealing with the contentions raised by Mr. Gopalaratnam learned counsel for the respondent, it will be convenient to deal with the point which has been raised by the learned Advocate-General which related to the form of the order passed by Panchapakesa Aiyar J. in the present case. The learned Judge held in his order that the goods imported did not fall within thecategory of goods covered by the licence. Onthat finding the goods were certainly liable toconfiscation under Section 167(8) Col. 4 of the SeaCustoms Act and there was no allegation thatthe terms of Section 183 under which the amount ofpenalty imposed as a condition of redeeming thegoods from confiscation, were not authorised bythe section. But the learned Judge held that the'bona fides' of the importers were a matter thatshould have been taken into consideration andreduced the fines and penalties imposed by thecustoms authorities to the figure of 12 1/2 per centof the value which the learned Judge consideredreasonable.
The learned Advocate-General argued that if the court had found that a penalty was called for, it had no power to convert itself, so to speak into a customs authority and impose what might in its opinion be the proper penalty. Of course the case would be different if the court reached the conclusion that no penalty was leviable or that there was something wrong in the manner in which the penalties themselves were levied. In the first case the order imposing the penalty would be set aside 'in toto' and in the latter case the penalty would be set aside and the customs authorities would be left to impose the penalty in accordance with the principles if any laid, down by this court. We agree that there is force in this contention and hold that the learned Judge was not Justified in fixing the penalty himself after holding that the goods were being imported without being covered by a licence.
22. This leads us next to the main contentions urged by Mr. Gopalaratnam on the merits of the case as regards the legality of the orders of the customs authorities holding that the goods were not covered by the licences. His contentions in this regards were three-fold.
23. Under Section 19-A(2) the Central Government is empowered to make regulations -- general or special -- respecting the detention and confiscation of goods the importation of which is prohibited and the conditions to be fulfilled before such action, and Sub-section (1) of this section directs the customs authorities to act in accordance with these regulations before detaining such goods or taking further proceedings with a view to their confiscation. It is admitted that no regulations have been framed under this enactment touching the manner of and procedure for confiscation and the argument of Mr. Gopalaratnam is that the power conferred by Sections 19, 167(8) and 183 of the Act cannot be exercised except in conformity with the regulations to be framed and in their absence cannot be exercised at all. We are unable to accept this contention. The power in Section 19-A(2) is an enabling power and the framing of the regulations cannot be read as a condition precedent to bringing into operation the powers and authority of the customs officers under Sections 19, 167(8) and 183. Of course if regulations have been framed the detention and confiscation would have to be effected in conformity with them but it is not as if these regulations bring into operation the power to detain or to confiscate if there is a violation of an import control notification.
24. The next contention was this. The licence granted to his clients authorised the importation of Diesel engines of 'over 20 H. P.'. The expression 'over 20 H. P.' should be read in the sense in which 'the expression would be understood by the trade. One had to remember that the proceedings against his clients were for evading the provisions of the Imports and Exports (Control) Act, 1947, and the notifications issued thereunder were penal in their nature with the result that his clients ought not to be Held to have infringed these prohibitions unless this was clearly made out. There was no dispute that the goods imported were marked 20/22 H. P. and the makers' specification for the manner in which the rating was arrived at showed that these engines were capable of carrying on overload of 10 per cent, for one hour. Further the exact performance of the engine and the output of energy indicated by the horse power was dependent upon temperature, altitude and the humidity of the atmosphere. The 20 H. P. which was indicated by the makers at one end was the minimum which the engine was capable of producing while the maximum output of the engine was 22 H. P.
In these circumstances he argued that it should be held that the Diesel Engines in the present case were over 20 H. p. and were therefore covered by the import licences. An affidavit was also placed before us by an expert who had calculated the exact brake horse power of these engines and gave it. as 20.0338 as the minimum horse power which these engines could generate. The affidavit of the expert makes it clear that the specification of the manufacturers viz., 20/22 H. P. Indicates that if the engine should be worked continuously for 12 hours it would generate 22 H. P. for a period of at least one hour without any undue strain or being subject to any extra wear and tear thereby. It was therefore argued that the engines in the present case were over 20 H. P. as mentioned in category No. 3 of the notification we have set out earlier.
25. it was further contended that the expression 'horse power' in the import control notification did not specify whether it was 'indicated horse power' or 'brake horse power' and that if it signified 'indicated horse power' the engines in the present case would generate 24 H. P. The last point about the Indicated horse power does not appeal to us for having regard to the other circumstances in this case which we have referred to, it is clear that both the Government as well as the trade understood the expression 'horse power' in the import control notification as meaning 'brake horse power' only.
26. On the other hand, in the counter affidavit of the Collector of Customs filed in the present case the ground on which the goods have been treated as not falling within the licences is stated in these terms :
'The descriptive literature produced by the importer showed the engines were rated to develop 20 H. P. for continuous operation but were capable of carrying as overload of 10 per cent, for one hour, i.e., for developing 22 B. H. P. maximum for intermittent running only. The engines were therefore regarded as 20 H. P. (constant) and the licence obtained by the importers for diesel engines over 20 H, P. was considered as not valid to cover the goods imported.'
27. We are of the opinion that though it is no doubt true that the question whether the engines which are the subject-matter of these proceedings were over 20 H. P. or not, is a question of fact, there can be no doubt that these engines are admittedly capable of developing over 20 H. P. It is not stated in the notification that it is the minimum horse power that would be produced by an engine that determines the class under which it falls. In the absence of such indication we are of the view that an importer ought not to be penalised when in fact the goods which he imports fall according to the trade into a category which are permitted to be imported, and that the order of the customs authorities holding that the goods are not covered by the import licence is not authorised by law.
23. The next ground that was urged by Mr. Gopalaratnam was that the customs authorities were estopped by their previous conduct from contending that the goods imported were not covered by the licences. Reference has already been made to the fact that as early as 19-10-1950, the technical representatives of Messrs. Turner Hoare and Co., of Bombay who are the sole agents for the import of these National Engines into India had interviewed the customs authorities at Bombay and had obtained from them an oral assurance that the OB or O. B. S. E. type 20/22 H. P. horizontal engines manufactured by the National Gas and Oil Engine Co. Ltd., could be imported into India under paragraph No. 4 of the Ministry of Commerce Notification as being more than 20 H P. and the representative of the department had confirmed this assurance in writing subsequently on 15-11-1950. It was in pursuance of this assurance that the order for the engines in question was booked by the importers in the present case and the imports made. On these grounds it was contended that the customs authorities could not go back upon their previous assurances on the basis of which alone imports were applied' for and obtained and the goods imported.
For this purpose reliance is placed upon a decision of the Bombay High Court in a case reported in -- 'Dadoba v. Collector of Bombay', 25 Bom 714 (J). The question that arose for consideration before the court was whether the Government of Bombay were estopped by reason of their previous conduct from imposing enhanced assessment under Land Revenue Act of Bombay.
29. The facts of the case were as follows : Certain lands in Bombay had been granted to the Trustees of the Free Church of Scotland Mission for the purposes of a school. The trustees were desirous of transferring the school to another locality and obtained the consent of the Government to sell the land. The intending purchaser insisted that the amount of the assessment on the land should not exceed what was payable in respect of pension and tax tenure in the locality then and ascertained from the Government what the land would be assessed at, for the purpose of land revenue. A resolution was passed by the Government regarding the assessment on the land and the contents of this resolution were communicated by the Collector to the parties and under this it was stated that the land would be assessed at the rate of nine pies per square yard per annum which was the rate which was followed by the Government for land in that locality for the previous six years. The land was then purchased and a conveyance executed in respect of it on 16-1-1888 the parties to the deed being the trustees of the mission, the Secretary of State and the purchaser. The deed of sale recited that the property was conveyed to the purchaser 'subject to the payment of all rates, taxes, charges, assessments leviable or chargeable in respect of the premises'. Until 1899 the assessment of nine pies per square yard, per annum was paid but in August 1899 the purchaser, who was the plaintiff in the action, received from the Collector of Bombay a notice that the assessment was enhanced to Re. 0-6-6 per square yard per annum and the purchaser thereupon filed a suit contesting the legality of the enhancement.
The Revenue Judge in whose court the suit was filed under Section 14 of the Bombay Act 2 of 1876 dismissed the action. The plaintiff-purchaser then filed an appeal to the High Court. Jenkins C. J. and Chandavarkar J. reversed this decree and held that the plaintiff had a right to hold the land for ever on payment of the assessment at the rate of Re. 0-0-9 per square yard per annum and that the Government had no right to enhance that rate. The learned Judges held that the communication from the Collector conveyed to any reasonable man an assurance that no more than Re. 0-0-9 per square yard per annum would be demanded as land revenue in respect of this land and that it was on that footing that the transaction of purchase had taken place and that on this basis the value payable for the property had been, calculated. The conduct of the Government coupled with the statement made on their behalf was held under the circumstances to create and encourage in the purchaser the belief that he was purchasing property substantially worth the price that he paid and that the Government were not silently reserving to themselves any unfettered right to destroy the value of that property and practically to confiscate that which had been sold.
30. The legal basis on which the Judgment was rested is thus stated by the learned Chief Justice. After setting out the facts mentioned above the judgment proceeded :
'But whether it be put on the ground of collateral contract or of estoppel it seems to me Government is bound. There was ample consideration to support a contract fixing the assessment permanently; for the Government not only received Rs. 2383-8-0 but the balance of Rupees 30616 went to furnish security to Government for the amount advanced as a grant in aid.
While if the matter be regarded from the point of view of estoppel the legal result is the same. In my opinion the conduct of Government, coupled with, the statement of the collector made on their behalf for the purposes of the purchase, was under the circumstances, such as to create and encourage in the purchaser as a reasonable man the belief that he was purchasing property substantially worth Rs. 33000 and that Government were not silently reserving to themselves an unfettered right to destroy the value of that property and practically to confiscate that which had been sold.'
The facts appear to me to bring the case within Section 115, Evidence Act......
31. This portion is also made clear in the judgment of Chandavarkar J. who said :
'Here it appears to me that when we have regard to the nature of the transaction, viz., that Government was selling the property out and out as any private proprietor when we look to the whole of the language used and the acts done in accordance with it during the negotiations, to the intimation conveyed to the purchaser that the land would be assessed at the rate of nine pies per square yard per annum without any warning that that amount was liable to be enhanced and to the fact that upon the faith of it all he paid Rs. 32,500 as its price after both the land and the buildings had been fully valued by Government and their price fixed in accordance with that valuation, the intention of the parties upon a reasonable construction must be taken to have been that the purchaser was to be liable to pay the amount of nine pies per square yard per annum then levied as assessment and no more. To hold otherwise would be to say that in purporting to sell their property to the purchaser as they did Government intended without using apt language to express that intention to reserve to themselves the right to turn round at any time afterwards -- perhaps the very next day after the sale --and so enhance the assessment as to practically nullify the purchase and confiscate the property.'
32. A similar estoppel was raised as against the Government in respect of the prerogative right to assess land revenue in the case reported in --'the Collector of Bombay v. Municipal Corp. of that City of Bombay,' : 1SCR43 (K), where the decision in 25 Bom. 714 (J) was referred with approval.
33. On the basis of these decisions it has been argued on behalf of the respondent that the Customs authorities are estopped from contending that the engines in question are not over 20 H. P. This contention does not appear to us to be sound. It is no doubt true that the Assistant collector of Customs of Bombay had been approached by the representatives of Messrs. Turner Hoare & Co., & that, the former had expressed the opinion that the engines in question could be freely imported as falling within paragraph 4 of the Ministry of Commerce notification of 11-9-1950. But the Assistant Collector of Customs would not be an authority who is authorised to commit the Government by his interpretation of the rules so as to render his construction of the notification binding upon the Government.
34. The decision in 25 Bom. 714 (J) as has been pointed out above was rested upon a principle analogous to -- 'Ramsden v. Dyson', (1866) LR 1 HL 129 (L), and it should be remembered that the Government themselves were parties to the indenture of sale executed in favour of the plaintiff in the case. These were the circumstances that were taken into account to create the estoppel against the Government. Moreover in that case there was a resolution of the Government themselves which was communicated to the purchaser by the Collector of Bombay and which, as stated by the learned Judges gave an assurance to the purchaser that the land revenue assessment upon the property which he had purchased would not be liable to enhancement and it was on foot of this assurance that the purchase price of which the Government had the benefit was calculated. In these circumstances, we do not see any analogy between the decision in 25 Bom 714 (J)', and the present case and we are of the opinion that there are no facts of the type which could raise an estoppel in favour of the importers in the present case.
35. Nevertheless the fact that an officer of the Customs authorities of the rank of an Assistant Collector had interpreted the notification in this manner might have a bearing upon two aspects of the matter. The first is that the importers could not be said to have attempted to 'evade' the provisions of the Imports and Exports (Control) Act, 1947, by reason of indenting these goods and attempting to pass them through the customs. The second is that it can be used as an indication of what the notification itself might mean. In other words though if the terms of the notification were clear the interpretation put upon it by an officer of the rank of an Assistant Collector would not be binding on the Government so as to estop them from afterward claiming that that Interpretation was wrong, it would certainly be 8 circumstance which would show that the notification would bear the construction put on it by respondent and by the trade and in fact should actually bear that interpretation.
36. The next point to be considered is the validity of the order of the Collector of Customs, Madras, imposing fines on those imported goods. It would have been noticed that there were five bills of entry in respect of the goods which were received by four steamers. Of these the first steamer to reach Madras was S. S. Indian Merchant which arrived here on 8-1-1951. It carried 48 pieces of machinery of the total value of Rupees 44581. The fine inflicted for the clearing of the goods for home consumption if the owner desired to avoid confiscation under Section 183, Sea Customs Act, was a sum of Rs. 44500 which would be a figure somewhere equal to its full value. The next vessel to reach Madras was S. S. Hesperla which was on 23-1-1951. There were two consignments on board this vessel each consisting of six parts and the value of each consignment being the same, that is, about Rs. 5573. There were two bills of entry filed in respect of these two packages and while a fine of Rs. 2800 was inflicted in respect of one package a fine of Rs. 4250 was levied on the other. No conceivable reason could be found for this differentiation between the two packages or for the differentiation between these packages and the packages received per the Indian Merchant.
The third vessel to reach Madras was the S. S. 'Indian Pioneer' which arrived on 13-2-1951. It contained one consignment of seven pieces valued at Rs. 6544. The fine imposed in respect of this was Rs. 10000 that is about 1 1/2 times their value. The last consignment to be received here was per 'S. S. Magdapur' which arrived on 18-3-1951 and the consignments consists of seven pieces of the value of Rs. 6544 and a fine of Rs. 9000 was imposed in respect of these goods. It will thus be seen that the quantum of the fines imposed under Section 183, Sea Customs Act, on these consignments is incapable of any rational explanation in relation to each other. It was certainly not a case where a heavier fine or penalty was imposed for the petitioner of an offence. This would show that the discretion which has been vested in the Customs authorities under Section 183 of the Act has not been exercised at all in any rational or intelligible manner. We are saying this for this reason that even if the goods imported did not fall within the terms of the licence granted to the importer we would have been inclined to set aside these fines oh the ground that the discretion vested in the officer by Section 183 of the Act to impose fines in lieu of confiscation had not been exercised at all and leaving it open to those authorities to exercise their power after considering the relevant circumstances. But in the view we are taking of the legality of the confiscation it is unnecessary to pursue this matter further.
37. From this it follows that the order of the Customs authorities refusing to permit the respondent-firm to clear the goods, was unauthorised and that the respondent firm are entitled to the issue of orders permitting the clearance of the goods relating to bills of lading with reference to 12 Diesel engines which are the subject matter of these proceedings without the payment of any penalty or fine but subject only to the payment of such duties or charges as may be leviable or recoverable in due course of law.
38. In the result, the appeal will be dismissed, the cross-appeal allowed and an order will issue in the terms above mentioned. The respondent firm will be entitled to their costs here and before the learned Judge which is fixed at Rs. 500 in each court.