P. Ramakrishnan, J.
1. The petitioner in these three writ petitions is the India Motor Parts Accessories Ltd., Madras, represented by its Director. The first respondent is the Collector of Customs, Madras, and the second respondent is the Assistant Collector of Customs, Madras. The three writ petitions are connected and common questions arise for decision in them. Hence they were heard together. The prior circumstances necessary for the consideration of the matters in controversy are briefly the following:
The petitioner is a dealer in automobile spare parts. The petitioner imported from West Germany automobile spare parts described as straight roller bearings not exceeding 2' diameter, and the goods arrived in the Madras harbour. They were cleared from the Customs at Madras on 5th August, 1961. The customs duty paid for that clearance was 75 per cent ad valorem and came to Rs. 11,913/75 P. According to the petitioner, he was assessed to pay this duty by the customs authorities on the ground that the articles in question fell under item 71(b), Indian Customs Tariff, for which the prescribed duty was 75 per cent, ad valorem. At that period the customs authorities were guided, for the purpose of making a decision as to the particular item in the customs tariff schedule under which the goods fell for the purpose of levy of duty, by Tariff Ruling No. 32/60 of the Government of India, dated 7th June, 1960, of which Public Notice No. 124/60 was given for the information of importers, clearing agents and the public. This ruling as embodied in the Public Notice above mentioned read thus:
'Roller bearings not exceeding 2' bore diameter should be assessed to duty under item 71 (b) ICT, unless they are specifically designed for use in motor vehicles, in which case they should be assesed under item 75(11)(v) ICT, Roller bearings are assessable under item 72(3) ICT, if they are specially designed for use with machinery operated by power other than manual or animal and if they are not suitable for use with motor vehicles and the like.
It would appear that representations were made subsequently by the trade, contra, and the Government of India reviewed the position and issued on 27th April,1962 another Tariff Ruling No. 23/62, of which Public Notice No. 64/62 was given on 6th June, 1962 to importers, clearing agents and the public. This later tariff ruling read thus:
Classification of Roller Bearings and Taper Roller Bearings should continue to be made on the basis of the Tariff Ruling No. 32/60 communicated, in this office Public Notice No. 124/60. The term 'specially designed for use in motor vehicles' used in para. 2 of the above public notice, as a criterion for classification of roller bearings under item 75(11)(v) ICT should be substituted by the term 'adapted for use as parts and accessories of motor vehicles other than motor cycles and motor scooters.
The main important change made by this later ruling for the purpose of classification of roller bearings was to substitute the term 'adopted for use as parts and accessories of motor vehicles other than motor cycles and motor scooters' for the term 'specially designed for use in, motor vehicles' used in the earlier ruling. Under the earlier ruling, if a particular spare part was found to be specially designed for use in motor vehicles, it could get the benefit of lower excise duty at 25 percent ad valorem under item 75(11)(v). But under the later ruling, if it was only adapted for use as parts and accessories of motor vehicles other than motor cycles and motor scooters, it could get the benefit of excise duty at the same lower rate. According to the petitioner, the roller bearings which they have imported are not specially designed for use in motor vehicles, but they could be adapted for use in motor vehicles, and therefore, if the second ruling had been applied at the time of the levy of excise duty in 1961, they need have paid only 25 per cent, and not 75 per, cent. In fact prior to the ruling in 1960 these spare parts were being assessed only under item 75(11)(v) at 25 per cent. It was only the charge made by the Tariff Ruling No. 32 of 1960 that led to the enhanced levy under item 71 (b). But the correct classification was restored by Tariff Ruling No. 23/62. Thereupon, the petitioner applied on 6th September, 1962 to the Assistant Collector of Customs, the second respondent, for refund of the duty of 50 per cent, in the excise duty. The Assistant Collector dismissed the application on the ground that since it was not filed within three months of the date of the collection of excise duty, namely, 5th August, 1961, the application was barred under Section 10 of the Sea Customs Act. The petitioner appealed to the first respondent, Collector of Customs, who also dismissed the application, confirming the finding of the Assistant Collector. Against there decisions, the petitioner has filed the three writ petitions praying for his reliefs in the following manner:
1. In Writ Petition No. 1016 of 1964, the prayer is to quash by a writ of a certiorari the original order of the Appraiser on 5th August, 1961 levying customs duty at 75 per cent, ad valorem. This writ petition was presented on 4th December, 1963, two years and four months after the order which is sought to be quashed.
2. The prayer in Writ Petition No. 1017 of 1954 is for the issue of a writ of certiorari quashing the order of the Collector of Customs, dated 29th November, 1962, confirming the order of the Assistant Collector of Customs, dated 15th September, 1962. This petition was presented on 4th December, 1963 approximately a year after the appellate order of the Collector of Customs.
3. The prayer in Writ Petition No. 1018 of 1964 is for the issue of a writ of mandamus directing the Collector of Customs to restore the appeal to his file and also to direct the appeal to be considered on merits. This prayer is consequent upon the prayer in Writ Petition No. 1017 of 1964. This writ petition was presented on 17th April, 1964, nearly one year and five months after the order of the Collector of Customs.
2. With regard to the prayer for quashing the original levy itself on 5th August,, 1961 in Writ Petition No. 1016 of 1964, the petitioner urges that it was entirely erroneous to classify roller bearings under the general provision in item 71(b). Throughout such roller bearings were classifiable under item 75(11)(v). That was the position which obtained prior to the issue of the Tariff Ruling No. 32 of 1960 on 7th June, 1960 and the original position was restored when Tariff Ruling No. 23/62 was issued. According to the petitioner, the levy in this case was made on the basis of the Central Board of Revenue Circular which the Collector of Customs-was bound to obey. The importer could not at that time raise any objection or to discuss the matter, because he would be always faced with the argument that the ruling would bind the Collector of Customs to give the decision he did. But the later ruling would clearly imply that the earlier ruling was erroneous. Therefore this is a case where the earlier levy at 75 per cent, was illegal and the petitioner applied to the authorities on 4th September, 1962, within three months of the publication of the second ruling (6th June, 1962) for refund of the levy illegally collected. It was, therefore, wrong to apply Section 40 of the Sea Customs Act (VIII of 1878) and reject the application as time-barred. Section 40 of the Act is in the following terms:
No customs duties or charges which have been paid and of which repayment wholly or in part, is claimed in consequence of the same having been paid through inadvertence, error or misconstruction, shall be returned, unless such claim is made within three months from the date of such payment.
Explanation. - Where duty is provisionally assessed under Section 29-B, the period of three months shall be computed from the date of final adjustment of duty.
3. According to the petitioner, there was no question of any erroneous decision of the Collector of Customs under the rules in force at the time of the levy and there is no question of any over-payment through inadvertence, error or misconstruction, so as to attract the three months' bar of limitation under Section 40. This is directly a case of a situation where 'the Customs Collector himself has been compelled by higher authorities to decide in a particular way and when the same higher authority subsequently says that its original interpretation is wrong, it then becomes the duty of the Customs Collector to alter and modify his earlier wrong decision. The Customs Collector's duty and authority to modify the earlier order emerges only on the date of the new circular.'
4. Learned Counsel Sri Thiruvenkatachari appearing for the petitioner urged that the word 'deemed' used in the second ruling will have the effect of making the later ruling retrospective. It would, therefore, follow by this retrospective application, that the earlier ruling itself had been superseded and therefore this would be a further argument to substantiate the contention that the earlier levy was illegal. Learned Counsel relied upon the decision, of the Supreme Court in Amar Singh and Ors. v. Custodian, Evacuee Properly, Punjab and Anr. : 1SCR801 at 611, where at page 611 Jagannadhadas, J., who gave the decision of the Bench, has made a remark in regard to a provision in the Constitution:
But, in view of the word 'deemed' in the amended Article 31(2-A) it appears likely that the amendment was intended to be retrospective.
It must be observed that the learned Judge does not say in all cases here the word, 'deemed' is used, a retrospective intention must automatically follow. He has only stated that a retrospective intention was likely. In fact, in the subsequent passages of the report the learned Judge assumed the contrary position for the sake of argument, and proceeded to discuss the effect of the amendment Therefore, it cannot be held in the present case that by the use of the word 'deemed' in the second ruling there was an intention of applying the ruling retrospectively for the purpose of reopening all earlier assessments. In fact, in the later ruling, we find the words 'Classification of Roller Bearings and Taper Roller Bearings should continue to be made on the basis of the Tariff Ruling No. 32/60.' It is in the context of the use of the term italicised 'continue to be made,' that one should interpret the use of the word 'deemed' in the later part of the ruling. So interpreted it will be a proper construction to attribute to the second ruling only a prospective effect.
5. Learned Counsel for the petitioner Sri Thiruvenkatachari referred to a decision of the Supreme Court in State of Madhya Pradesh v. Bhailal Bhai : 6SCR261 . That case arose out of assessment of sales tax on tobacco imported, in Madhya Bharat. Sales-tax was levied, on imported tobacco, but no tax was imposed on tobacco produced in the State. In a writ petition filed under Article 226 of the Constitution to quash the assessment, the High Court of Madhya Pradesh held that the levy violated Article 301 of the Constitution and was illegal. The High Court also allowed refund of the tax levied in some of the instances and disallowed in others. The Supreme Court confirmed the decision of the High Court about the illegality of the levy. In regard to the bar of limitation urged in respect of the application for refund of tax erroneously paid, the Supreme Court observed:
It cannot now be disputed that this payment was made under a mistake within Section 72 of the Indian Contract Act and so the Government to whom the payment has been made by mistake must in law repay it.
After referring to earlier decisions, the Supreme Court held that the High Court in such cases where writ petitions are filed for the purpose of enforcement of fundamental rights and statutory rights could also give consequential relief by ordering repayment of money realised by the Government without the authority of law. Later on, in the same judgment, the Supreme Court was prepared to excuse the time for applying for refund provided the interval that had elapsed before the writ petition was filed was a reasonable period, and observed that the maximum period fixed by the Legislature as the time within which the relief by a suit in a civil Court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured (at page 1012 of the report). However, before the abovesaid decision can be applied to the circumstances of the present case, there must be an initial decision of a competent authority that the levy of the higher rate of customs duty is illegal. Assuming for the sake of argument that the Assistant Collector of Customs, to whom the petitioner made the application for refund on 4th September, 1962, had jurisdiction to decide that the payment made earlier was an illegal levy, it must be shown further that the Assistant Collector had the power to direct the repayment of the mony under a power other than what was conferred under the Act under Section 40. Learned Counsel for the petitioner referred me in this connection to Sections 140 and 188 of the Sea Customs Act. But they are quite inapplicable to the present case. In other words, there is no provision under the Sea Customs Act under which a party can obtain repayment of duty already paid by application to the authorities other than Section 40. Therefore, the authority to whom the application is made must necessarily act under Section 40 and that section contains the important restriction that the claim for repayment should be made within three months from the date of payment. The petitioner will be in time only if the three months rule in this section is to be construed as three months from the date of the discovery of the illegal payment and such discovery must be before the date when the second ruling was published on 5th June, 1962. Only by giving to the rule of limitation in Section 40 this arbitrary interpretation will it be possible to treat the application for refund made by the petitioner to the customs authorities on 4th September, 1962 as in time. But there is no warrant to give to the rule of limitation in Section 40 any such arbitrary interpretation. That will be per se illegal. Therefore, whatever view one may take about the propriety of the ruling when the levy is questioned subsequently either in a regular suit or in a writ petition for enforcing fundamental rights, the position that has to be considered in Writ Petition Nos. 1017 and 1018 of 1964 is whether it is possible to correct the view of the Assistant Collector and the Collector, that the application made to them for refund was barred by time. So far as those officers are concerned, assuming the petitioner's contentions to be true, it was plainly a case of a levy through-misconstruction of the relevant item in the Indian Customs Tariff list, under which roller bearings, would fall by the authority making the levy. It is immaterial for the purpose whether the misconstruction arose because a later administrative ruling corrected an earlier administrative ruling which was applied at the time of the levy, and by a retrospective operation of the later ruling, the earlier ruling has: to be declared as bad. However, the fact would remain that if the later ruling had been given long beyond the period of three months, the aggrieved party will not be able to obtain relief under Section 40 for refund. That does not mean that he is left without a remedy. He could file a suit provided the suit is within time. He could equally get a relief by way of writ petition under Article 226 of the Constitution for which there is no specific law of limitation. But in the latter case the Court has a discretion in the matter of condoning the delay upto a reasonable period.
6. One can in this connection make a brief reference to the provisions in the rules under the Excise Act. There, a shorter period of limitation is fixed for the authorities to recover excise duties short levied or refunded in excess, to which Rule 10 will apply. Rule 10-A gives however, no time limit for making a demand of excise duties short levied or payments due to the Government in residual cases where Section 10 will not apply. Rule 10-A has been held as applicable, by the Supreme Court in cases where by reason of a later Finance Act, the retrospective increase of excise duty had been levied and it was held that while the restricted period of limitation under Rule 10 will not apply to such a case, the increased amount can be collected under the residual provision in Rule 10-A. But those rules have been designed to enable the Government to collect short levies or excess refunds from assessees to excise duty. But the importer, who claims relief in consequence of over-payment of customs duty, is not given by the Sea Customs Act the benefit of any such residual provision like Rule 10-A of the Excise Rules. So far as the Sea Customs Act and the heirarchy of tribunals tinder that Act are concerned, the importer must necessarily seek his relief under Section 40 of the Act. But if Section 40 cannot give him a remedy from the hierarchy of officers under the Sea Customs Act, he will have to seek relief by way of suit or by way of writ proceedings.
7. From the above point of view it will not be possible to afford relief to the petitioner in Writ Petition Nos. 1017 and 1018 of 1964 on the ground that the authorities, acted erroneously in treating the application made to them for refund of customs duty as falling under Section.40 and barred by the rule of limitation in that section.
8. I will next take up Writ Petition No. 1016 of 1964 where the petitioner prays that the original assessment order dated 5th August, 1961 levying excise customs, duty at 75 per cent, is illegal and should be quashed by a writ of certiorari on the ground that the Customs Authority's decision that roller bearings fall under item 71 (b) of the Tariff Schedule involves an error patent on the face of the record.
9. The broad principle to be adopted for the purpose have been laid down by the Supreme Court in A.V. Venkateswaran v. R.S. Wadhwani : 1983ECR2151D(SC) , which was followed in Collector of Customs v. K. Ganga Setty : 2SCR277 . These principles have now become very well known, arid they are to the following effect:
It is primarily for the Import Control authorities to determine the head or entry in tariff schedule under which any particular commodity fell; but if in doing so, these authorities adopted a construction which no reasonable person could adopt, i.e., if the construction is perverse, then it is a case in which the Court is competent to interfere. In other words, if there were two constructions which an entry could reasonably bear, and one of them which was in favour of Revenue was adopted, the Court has no jurisdiction to interfere merely because the other interpretation favour able to the subject appeals to the Court as the better one to adopt.
So far as this Court is concerned, the administrative rulings may not be binding, and it has to consider the question from the terms of the classification made by the statute, which, in this case, are found in the appropriate schedule of the Tariff Act. The position of the administrative ruling, is only as a direction which the Government had issued for the guidance of the customs authority and which the customs authority has no doubt got to adopt, and if he ignores the ruling, he does so at the peril of executive action being against him. But the Court in dealing with the matter can refer to the ruling and refuse to be guided by the ruling according to the view it take, whether the administrative ruling covers a relevant and valid point for the purpose of interpretation or not Item 75(11) under which the lower rate of excise duty was claimed by the petitioner is in the following terms:
75. (11) The following articles and parts thereof, adapted far use of part and accessories of motor vehicles other than motor cycles and motor scooters namely...(i) to (iv)
(v) the following other components:
It is clear from the above that the term found in the main heading 'ad anted for use of parts, and accessories of motor vehicles' is an essential statutory provision which will apply to 'roller bearings,' which forms a sub-heading under the main heading The conflict in the different rulings has arisen because the word 'adapted has acquired according to the dictionary, a use as a verb and also a use as an adjective or adverb. Taking the Concise Oxford Dictionary as a ready book of reference for this purpose, m the transitive verbal form, the word 'zdant' means 'fit (a thing to another) make suitable for a purpose, modify alter' In the adverb and adjective form it has the meaning 'calculated' and this meaning is derived from a Latin usage for which the dictionary gives the example ad captandum, (vulgus). If the verbal meaning of the word 'adapted' is to be used the first ruling would be applicable because the 'roller bearings' have to be specially designed, that is, undergo a modification or alteration for use in motor vehicles. The necessity to make a special design of adaptation, will also restrict the type of roller bearing which will get the benefit of the lower levy. But if the adjectival meaning is to be given to the word 'adapted' the circumstance that 'roller bearings' could also be viewed in the sense of being an. article calculated for use in motor vehicles, without any special design or modification or alteration would make the direction m the second ruling the more proper way of interpreting; the term 'adapted for use.' This will give the benefit of the lower levy to a much larger number of items and must be viewed as a more liberal interpretation of the term 'adapted.' But the fact that for a certain period the authorities were giving-to the word 'adapted' a meaning which considerably restricted the benefit of the lower levy under item 75(11), and later on, on the representations made by the trade, the authorities were persuaded to give up this method of interpretation and fall back upon a different meaning for the term 'adopted' which led to a wider and more liberal application of item 75(11) of the schedule, will not be a ground on which this Court in the exercise of its power under Article 226 of the Constitution can proceed to correct the earlier interpretation as one perverse or which no reasonable person will give, bearing in mind the principles in Venkateswaran's case : AIR1962Mad249 .
10. For the aforesaid reasons, I am of the opinion that even if one were to condone the delay of nearly two years and four months which has occurred on the presentation of Writ Petition No. 1016 of 1964, it is not a proper case where the order challenged in the petition requires to be quashed by a writ of certiorari. The petitions are therefore, dismissed, but without any order as to costs.