P.V. Rajamannar, C.J.
1. This is an appeal from the Judgment of Subba Rao on an Application (No. 4680 of 1952) filed by the appellant under Section 45 of the Specific Relief Act for the issue of 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 23rd September, 1952, confirmed by the Collector of Customs on appeal, on 8th October, 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 1st August, 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 the 23rd September, 1952, the Assistant Collector confiscated the goods under Section 167(8) of the Sea Customs Act and imposed a fine of Rs. 5,000 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 of the Sea Customs Act react with Section 3(2) of the 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 of the 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 into 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 No. 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 IV of the same schedule, corresponding to Item No. 10 of the Indian Customs Tariff, namely 'Grains', then 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 oats, crushed or uncrushed, fell within the category of fodder or grains. We have on record a letter dated 14th September, 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 8th January, i9o2, 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 14th September, 1951, on the above subject.
In modification thereof, I write to inform you that (a) 'Feed Oats' (i.e., whole grains) are classifiable under 10 I.C.T. corresponding to S. No. 32 of Part IV, I.T.C. schedule and accordingly a licence is required for import of the goods (whole grains); (A) 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.
4. 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 forbear 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.
5. 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, Feed 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. He was unable to draw our attention to any such provision. 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.
6. 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, in. our opinion, be finally decided by a competent Court.
7. '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 7th September, 1951, addressed by the appellant to the Import Trade Controller, it is difinitely stated that the import is of 'Horse-Feed 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.
8. Mr. Raja Ayyar cited to us the decision in Clements v. Smith (1860) 3 El. & El. 238 : 121 E.R. 431. That case related to the construction of Section 32 of the General Turnpike Act which enacted, inter alia.
that no toll shall he 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 and 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.
9. A horse and cart passed through a toll-gate, carrying threshed 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.
10. 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 No. 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.
11. In the result the appeal is allowed and 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.
12. 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.
13. There will be no order as to costs of any party.