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B. Khushalchand Vs. Jt. Secretary to the Govt. of India, Ministry of Finance, Department of Revenue and Insur. and the Assistant Collector of Customs - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtChennai High Court
Decided On
Case NumberWrit Petition No. 3187 of 1975
Judge
Reported in1979CENCUS332
AppellantB. Khushalchand
RespondentJt. Secretary to the Govt. of India, Ministry of Finance, Department of Revenue and Insur. and the a
DispositionPetiton dismissed
Cases ReferredClayton v. Peirse
Excerpt:
customs act, 1962 - sections 11-b, 111(d) and (p) and 112 - notified goods--term 'adjustable safety razors' in notification dated 3.1.1969 as amended by notifications dated 10.1.1969 and 1.11.1969--interpretation of the department held as not perverse. - .....collector disagreed with the interpretation sought to be placed on the notification making the goods adjustable razors, and accordingly ordered confiscation of the goods by an order dated 19.7.1972, under section 111, clauses (d) and (p), of the act. an appeal was preferred to the appellate collector. he affirmed the order of confiscation. however, he did not accept the basis of the order under section 111(d). thereupon, a revision was preferred to the government of india. that revision was also rejected on 23.9.1974. it is under these circumstances, the present writ petition has been preferred for the issue of a writ of certiorari to quase these orders.3. learned counsel for the petitioner raises the only contention before me that the razors that were seized from him do not belong.....
Judgment:
ORDER

Mohan, J.

1. This writ petition coming on for hearing on Thursday, the third day of November 1977 and on this day upon perusing the petition and the affidavit filed in support thereof, the order of the High Court dated 2.5.1975 and made herein, and the Counter affidavit filed herein and the records relating to the order in No. 4496 of 1974, dated 23.9.76 on the file of the 1st respondent and comprised in the return of respondents herein to the Writ made by the High Court, and upon hearing the argument of Mr. K. C. Rajappa Advocate for the petitioner, and of Mr. T. Chengalvarayan Central Government standing counsel on behalf of the respondents, the Court made the followingorder:

The short facts leading to this writ petition are as follows: On 7.1.1972, officers attached to the Madras Customs House searched a room in the premises No. 41, Kalathi Pillai Street, Madras-1, which was under the occupation of the petitioner, in execution of a search warrant No. 86/72 dated 7.4.1972. The search resulted in the recovery of two numbers of Hitachi 3 Band Car radios and 144 Nos. of Gillette Razor sets, all valued atRs. 2,040/-C.I.F. As the petitioner was not in possession of any documents or bill to prove the licit origin and legal acquisition of the aforesaid goods, which were notified goods under Section 11-B of the Customs Act, 1962 (ActLII of 1962) (hereinafter referred to as the Act) and since he had failed to intimate the Customs authorities, his room as a place of storage of notified goods as required under the Act, all theabovesaid goods were sezied under a mahazar on a reasonable belief that they were smuggled into India. The petitioner, in his statement which was given immediately after seizure, averred that he was a broker dealing in Indian and foreign goods, that the Gillette razor sets were bought by him at the rate of Rs. 15/- per set from Burma Bazar without cover of any bill, that the two car radios were bought by him from passengers arriving from abroad without any voucher about a week befors the seizure, that he got one of those car radios repaired from M/s. New Radio Home, Madras and received the same only on the previous day, that he bought the car radios paying Rs. 500/- for one radio and Rs. 450/- for the other and that he was not aware that it was an offence to deal in foreign goods without proper documents and without declaration and intimation to the Customs authorities.

2. Based on the above, a notice was issued to the petitioner on 12.9.1972 requiring him to show cause as to why the seized goods valued at Rs. 2040/- C.I.F. in all, should not be confiscated under Section 111(d) and (p) of the Act and why a penalty should not be imposed on him under Section 112. A reply was furnished by the petitioner, in which he stated that the seized razors were not adjustable razors to be classified as notified goods and that out of the two car radios seized, one belonged to his cousin and the other belonged to his friend Shri C. Krishnamurty. At the personal hearing granted to him by the Assistant Collector of Customs on 19.7.1972, the above contentions were reiterated by the petitioner. The Assistant Collector disagreed with the interpretation sought to be placed on the notification making the goods adjustable razors, and accordingly ordered confiscation of the goods by an order dated 19.7.1972, under Section 111, Clauses (d) and (p), of the Act. An appeal was preferred to the Appellate Collector. He affirmed the order of confiscation. However, he did not accept the basis of the order under Section 111(d). Thereupon, a revision was preferred to the Government of India. That revision was also rejected on 23.9.1974. It is under these circumstances, the present writ petition has been preferred for the issue of a writ of certiorari to quase these orders.

3. Learned Counsel for the petitioner raises the only contention before me that the razors that were seized from him do not belong to the adjustable type, that they are all ordinary safety razors and therefore, to say that they would fall under the category of adjustable razors is perverse. It is also stated by him that these adjustable safety razors should be understood in the sense in which it is understood in the commercial world. In support of this contention he relies upon the decision in Dunlop India Ltd. v. Union of India and Ors. A.I.R. 1977 S.C. 597. Basing on this, it is contended that adjustable safety razors are totally of a different type manufactured by the Gillette Manufacturing Company itself, which were produced before the authorities concerned and so, by no stretch of imagination, the razors that formed the subject-matter of seizure could be classified to fall under this catagory of adjustable safety razors.

4. Mr. T. Chengalvaroyan, learned Counsel for the department, draws my attention to Section 11-B of the Act and states that the language employed under that section is, 'import of goods of any class or description'. The word 'description' should not be understood literally or in a pedantic sense and that whether a particular razor set, though it carries the brand name as 'adjustable safety razor', would fall under the category or not is not the question. On the contrary, if the safety razor would include any safety razor, by reason of the descriptive name 'adjustable', ordinary safety razors cannot be allowed to go out of the category of 'adjustable safety razors'. In support of this submission, reliance in placed upon Clayton and Anr. v. Peirse (2) (1904) 1 K.B. 424). He also draws my attention to the order of the original authority, wherein the word 'description' has come to be ascertained in a very detailed fashion, and according to him, that should commend itself to the Court. In any event, on a purely factual verification a finding has been rendered as to whether the razor sets seized from the petitioner were of the adjustable type or not, and the Court exercising the Writ jurisdiction cannot take a different view and strike down the order so long as it cannot be held that the view taken by the department is perverse.

5. Section 11-B of the Act reads as follows:

If having regard to the magnitude of the illegal import of goods of any class or description, the Central Government is satisfied that it is expedient in the public interest to take special measures for the purpose of checking the illegal import, circulation, or disposal of such goods or facilitating the detection of such goods, it may, by notification in the Official Gazette, specify goods of such class or description.

It is by the exercise of this power, the notification dated 3-1-1969 as amended by notifications dated 10-1-1969 and 1-11-1969, had come to be issued in the following terms:

Whereas the Central Government, having regard to the magnitude of the illegal import of the goods mentioned in the Schedule hereto annexed, is satisfied that it is expedient in the public interest to take special measures for the purpose of checking the illegal import, circulation and disposal and facilitating the detection, of the said goods,

Now, therefore, in exercise of the powers conferred by Section 11B of the Customs Act, 1962 (52 of 1962), the Central Government hereby specifies the goods mentioned in the Schedule as the goods with respect to which special measures for the purpose of checking the illegal import, circulation and disposal, and facilitating the detection thereof, shall be taken.

6. One of the items listed in the Schedule annexed to the above notification, is 'adjustable safety razors'. What is contended by the petitioner is that the manufacturers of safety razors viz., M/s. Gillette Manufacturing Company themselves have manufactured the razor set called 'adjustable razors', which is of a screw type with different numbers of adjustability. It is that which was sought to be prohibited under this notification and it is so understood in the commercial world. Dunlop India Limited v. Union of India A.I.R. 1977 S.C. 597 deals with a different situation all together. In that case, the question was as to how V.P. Latex should be classified. In the course of the judgment, it was laid down by their Lordships of the Supreme Court at page 606 as follows:

We are, however, unable to accept the submission. It is clear that meanings given to articles in a fiscal statute must be as people in trade and commerce, conversant with the subject, generally treat and understand them in the usual course. But once an article is classified and put under a distinct entry, the basis of the classification is not open to question. Technical and scientific tests offer guidance only within limits. Once the articles are in circulation and come to be described and known in common parlance, we then see no difficulty for statutory classification under a particular entry.

7. This is no doubt a general proposition But, here, what is to be essentially borne in mind is that there is a notification under Section 11-B of the Act. If the avowed object of that notification is to prevent the illegal import of the goods concerned having regard to its magnitude, in my view, a wider meaning must be given to this notification. If the Court were to entertain fine distinctions, certainly it would be defeating the very purpose of the notification, nor is it warranted under the circumstances. Further, as rightly contended by Mr. Chengalvaroyan, what is talked of under Section 11-B is import of goods of any class or description. Such a description should include the original. Clayton v. Peirse (2) (1904) 1 K.B. 424, dealt with the meaning of the word 'description' occurring in the bye law made under Section 39 of the Salmon Fishery Act, 1873. Kennedy, J., held:

It seems to me that there is no reason why the word 'description' should not be held to cover the generic description of sets as well as particular characteristics of those sets The conservators may say, as I think, that a net of a certain description, such as a draft net or beating net, shall not be used, or they may say that the description of a draft net or beating net shall be so and so indicating its particular characteristics. I think that there is no reason in limiting the word 'description' to the description of the characteristics of the net. For all practical purpose it must be conceded that it would be possible by describing the characteristics of a particular kind of net to make it of different degrees of efficacy, and therefore by a bye law made under Sub-section 3 of Section 39, it would be possible by setting out the characteristics of a net which should be forbidden to exclude the use of a particular kind of net altogether. In other words, according to the argument for the appellants, the conservators have power to forbid the use of a net described by the enumeration of its points, but have no power to exclude its use if they merely called it by its name as a draft net or a beating net. The argument, therefore, leads to the fallacy that the bye law would be good if the net had been described without naming it, but is bad because it names without describing it.

8. The ratio of this decision is fully applicable to the present case. Reliance placed by the department on this decision is, therefore, well justified. Added to this, I also find from the order of the Appellate Collector that the matter has been viewed as follows:

There is no definition or description of an 'Adjustable razor' even in the Encyclopaedia Britannica. The Webster's Third New International Dictionary defines the word 'adjust' as follows: 'to bring to a true or effective relative position (as the parts of a device).' The term 'adjustable' is defined as 'capable of being adjusted'. This term is used in the dictionary also in respect of a spanner and adjustable wrench. An adjustable spanner (also known as Monkey wrench) has been defined as follows: 'a wrench with one fixed and one adjustable jaw at right angles to a straight handle.' Adjustable wrench has been defined as 'a wrench similar to an open end wrench but having one fixed jaw and one adjustable jaw'. It would appear from the manner in which the term 'adjustable' has been employed to name a particular kind of wrench and a particular kind of space that it applies where one part of a device is fixed while the other part is movable or 'adjustable'. In this view, it would appear that the confiscated razors would also be regarded as adjustable sizes of the two jaws of the razor which hold the safety razor blade, one jaw is fixed and the other is movable or adjustable. Merely because the more sophisticated type of safety razor with a numbering device for altering the setting of a blade, when fixed in position had been called 'adjustable' by M/s. Gillette, the manufacturer, it may not be correct to conclude that it is only this device that makes a safety razor as 'adjustable' safety razor. It could be very well regarded that the special numbering device merely enables further adjustment, after the initial adjustment i.e., of fixing the blade in position by moving the 'adjustable' jaw of the razor to the requisite extent. I cannot therefore, see any valid reason for refusing the description of 'adjustable' to the safety razors that have been seized in this case. It may be added that, even regarded from the point of the object of the Customs Amendment Act provisions, it seems that the seized razors would fall within the mischief of the term 'adjustable safety razors'. These provisions are designed to control smuggling of certain specified consumer goods, the smuggling whereof had reached serious proportions. The sophisticated and very expensive razors bearing the numbering device which alone the appellant regards as 'adjustable razors' could not be considered as entering the country in significantly large quantities.

9. I am in complete agreement with the interpretation placed by the department with regard to this item adjustable safety razors'. Merely because the manufacturers call the particular type of razors as 'adjustable safety razors', that does not mean that the department is bound to accept it, without regard to the purpose of the notification. Therefore, I am not inclined to hold that the interpretation placed by the department is in any way perverse, in which case alone, as is well settled by a series of decisions of the Supreme Court this Court can intefere in its writ jurisdiction.

10. As far as the car radios are concerned, they clearly fall under the impugned notification. Therefore, there is little difficulty in upholding the order in this regard.

11. Accordingly, this writ petition fails s hereby dismissed with costs. Counsel's fee Rs. 200/-


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