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Khan Bahadur H.M. and D.H. Bhiwandiwalla and Co. Vs. Secretary of State - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtChennai
Decided On
Reported inAIR1937Mad536
AppellantKhan Bahadur H.M. and D.H. Bhiwandiwalla and Co.
RespondentSecretary of State
Cases Referred and Rangachari v. Secy. of State
Excerpt:
- - in best & co. on that subject, i have nothing to add to what i said in my own considered judgment which is reported in best & co. collector of madras air 1919 mad 715, which is the case which i have already referred to, namely best & co. collector of madras air 1919 mad 715. without going into the reasons given by the learned judges in the two authorities which deal very fully with the point, i am perfectly satisfied that the objection under section 106(2), government of india act, prevails in this case. in all the cases to which he has referred it is clearly stated that the decision of the tribunal concerned was conclusive provided all the. in my view this as well as the first preliminary objection prevails......one of revenue. it deals with the importation of goods into this country and the fixing of the duty or revenue to be paid in respect of such importation and such duty when paid is placed to revenue of this country, and i can see no clearer case of a matter of revenue than the one which is now before me. in my view the first preliminary objection of the learned advocate-general taken under this sub-section prevails. i shall refer to one or two authorities to which my attention has been directed. in best & co., ltd. v. collector of madras air 1919 mad 715, this very objection was taken and coutts-trotter, j., as he then was, in the course of his judgment decided that even an agreement between a tax payer and th6 collector where the collector in fact had repudiated the agreement, could.....
Judgment:

Gentle, J.

1. This is a suit brought by the plaintiffs who are a firm of merchants in Madras against the Secretary of State for India in Council represented by the Collector of Sea Customs, Madras, in which they claim a declaration that the order of the Central Board of Revenue dated 11th January 1933 assessing the plaintiffs to duty at the enhanced rate prevailing on 31st August 1932 is contrary to law, ultra vires and against the Sea Customs Act and for an order directing the defendant to refund to the plaintiffs an agreed amount alleged to be the sum paid in excess of the correct sum for import duty on account of the enhanced duty imposed, that is to say, the difference between the higher and lower rates of duty.

2. The suit is brought under these circumstanstances: On 28th August 1932 S. Section 'Rohana' arrived in Madras carrying 35 cases of cotton printed shirtings which the plaintiffs desired to import into this country. It also carried 25 cases of cotton twill which the plaintiffs similarly desired to import. In order to import goods into this country, it is necessary, under the Sea Customs Act, to deliver a Bill of Entry giving particulars of the goods to be imported including in Cols. 6 and 7, rate and market value of the goods. It is alleged that usually the Bill of Entry form is first lodged with Cols. 6 and 7 in blank and a 'market value slip' is attached upon which is written the value which the importer places upon the goods. This 'market value slip' is placed before the Appraiser and he either agrees or disagrees with the value alleged; if he agrees, then that value is the one which is entered subsequently in the Bill of Entry form: if he disagrees then he places a different value and the value so placed is no doubt subject to negotiation between the importer and the Appraiser, But eventually there is always a value entered in Cols. 6 and 7. The object of this method being adopted is this: if the importer, in Cols. 6 and 7, places a wrong value upon the goods which is less than their real market price, the importer is liable to a penalty which is indicated in the Sea Customs Act, because he then declares in the Bill of Entry the value which he says the goods bear, and it being a wrong value he is liable to the penalty; but by means of this slip the importer does not declare according to the provisions of the Act the value, and if the sum he mentions on the slip is less than the proper amount he does not render himself liable to the infliction of a penalty.

3. In regard to the consignment of 35 cases the plaintiffs, on 26th August, presented to the Customs authorities a Bill of Entry with a market value slip and this was returned by the Appraiser on 31st August with the value placed upon the goods by the plaintiffs in the market value slip increased to some extent, which increased value was apparently accepted by the plaintiffs. In regard to the second lot of goods, namely 25 cases of cotton twill, the Bill of Entry was presented on 29th August 1932 similarly with a market value slip and was returned on the same day also with a sum higher in value as the proper market price than the amount entered by the plaintiffs. In respect of both the Bills of Entry the plaintiffs, I am assuming, accepted the increased value and entered this sum in cols. 6 and 7 of the Bill of Entry form. On the night or the early morning of 30th August the duty upon these goods was enhanced and as a consequence a higher amount of duty was demanded by the customs authorities than would have been payable prior to 30th August 1932. This increased amount of duty was paid under protest, the plaintiffs taking up the position that because of delay in the office of the Appraiser or some such excuse they should have been charged with the lower instead of the higher rate of duty. The plaintiffs carried their complaint to the Central Board of Revenue. This was done in pursuance of Section 188, Sea Customs Act, which provides as follows:

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 Local 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 Local Government.

Such authority or officer may thereupon make such further enquiry and pass such order as he thinks fit confirming, altering or annulling the 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 131 be final.

4. The Central Board of Revenue considered the appeal by the plaintiffs on 11th January 1933 and dismissed it. Against the maintainability of this suit the learned Advocate-General has taken two preliminary objections. The first is under Section 106(2), Government of India Act, 1915, and the second is in respect of Sections 188 and 191, Sea Customs Act. In regard to the first objection the wording of Section 106(2), Government of India Act, is as follows:

The High Courts have not and may not exercise-any original jurisdiction in any matter concerning the revenue, or concerning any act ordered or done in the collection thereof according to the usage and practice of the country or the law for the time being in force.

5. At the moment I am sitting in the original jurisdiction of this High Court, this matter in my view is entirely one of revenue. It deals with the importation of goods into this country and the fixing of the duty or revenue to be paid in respect of such importation and such duty when paid is placed to revenue of this country, and I can see no clearer case of a matter of revenue than the one which is now before me. In my view the first preliminary objection of the learned Advocate-General taken under this sub-section prevails. I shall refer to one or two authorities to which my attention has been directed. In Best & Co., Ltd. v. Collector of Madras AIR 1919 Mad 715, this very objection was taken and Coutts-Trotter, J., as he then was, in the course of his judgment decided that even an agreement between a tax payer and th6 Collector where the Collector in fact had repudiated the agreement, could not be the subject of a suit in this Court. In Govindarajulu Naidu v. Secy. of State AIR 1927 Mad 689, which came before Sir Murray Coutts-Trotter, C.J., and Beasley, J. as he then was, the same objection was taken. That was a case where smuggled goods were sold and the proceeds of the sale were devoted to the revenue of the country and proceedings arose out of the matter. At p. 455 in dealing with this objection the learned Chief Justice says:

Finally the point is taken on behalf of the Secretary of State that this is a matter affecting the revenue and that Section 106(2), Government of India Act, covers the matter. On that subject, I have nothing to add to what I said in my own considered judgment which is reported in Best & Co., Ltd. v. Collector of Madras AIR 1919 Mad 715,

which is the case which I have already referred to, namely Best & Co., Ltd. v. Collector of Madras AIR 1919 Mad 715. Without going into the reasons given by the learned Judges in the two authorities which deal very fully with the point, I am perfectly satisfied that the objection under Section 106(2), Government of India Act, prevails in this case.

6. There is however a further objection which in my view also prevails. When the statute has provided a remedy for any wrong arising under the statute, that remedy must be followed and recourse to the Courts is not possible since the remedy given by the statute amounts to an ouster of the jurisdiction of the Courts. Section 188, Sea Customs Act, to which I have already referred, provides the remedy and the tribunal to which an appeal has to be made if a grievance is believed to exist in regard to any decision or adjudication of a Customs Officer and the section further provides that every decision of the tribunal mentioned, namely the Central Board of Revenue, shall be final subject to revision under another section, namely Section 191, Sea Customs Act. Again I have been referred to several decisions in Ramachandra v. Secy. of State (1889) 12 Mad 105, Bhaishankar v. Municipal Corporation of Bombay (1907) 31 Bom 604, Iswaranda Bharathi Swami v. Board of Commrs. for Hindu Religious Endowments, Madras AIR 1931 Mad 574 and Rangachari v. Secy. of State : AIR1934Mad516 . I do not intend or propose to go fully into the reasons given in all those judgments. The learned Judges in those cases have dealt extensively with the reasons for which they arrived at the conclusion that when the statute does provide a tribunal to which any grievance arising under the Act has to be taken that tribunal is the one by which the grievance is to be decided. What the plaintiffs apparently are trying to do by this suit is to appeal from the decision of the Central Board of Revenue. Mr. Krishnaswami Ayyangar has referred to one or two authorities in which it was held that the jurisdiction of the Court to entertain matters arising out of decisions given by tribunals coming into existence by reason of the Act concerned is not conclusive. In all the cases to which he has referred it is clearly stated that the decision of the tribunal concerned was conclusive provided all the. requirements of the Act were fulfilled. There is no such proviso in Section 188, Sea Customs Act. It is not suggested that either the Collector in Madras or Central Board of Revenue have refused to carry out their duties provided under the Act; if they had done so then this Court might have been invoked to order them to do so. They carried out their duties and came to a decision and that decision to my mind is final subject to revision under Section 191 of the Act. The Sea Customs Act itself does provide the remedy and the tribunal to decide disputes under the Act. This Court has no jurisdiction. In my view this as well as the first preliminary objection prevails. The result is, this suit is dismissed with costs.


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