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Jasoda Jiban Saha (P.) Ltd. Vs. S.K. Chatterjee and anr. - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtKolkata High Court
Decided On
Case NumberMatter No. 7 of 1960
Judge
Reported inAIR1961Cal195
ActsConstitution of India - Articles 14 and 226; ;Sea Customs Act, 1878 - Sections 30 and 198
AppellantJasoda Jiban Saha (P.) Ltd.
RespondentS.K. Chatterjee and anr.
Cases ReferredFord Motor Co. of India Ltd. v. Secy. of State
Excerpt:
- .....c. act is thus clearly established.'2. accordingly, an order was passed confiscating the offending goods valued at rs. 1,982.45 np. under 167 (8) of the sea customs act. in lieu of confiscation, the company was given an option under section 183 of the said act, to clear the goods on payment of a fine of rs. 4,600/- within four months from the order.3. it is against this order that this application is directed. the grounds on which a writ of certio-rari can be issued in such a case are two, namely, --there must be either a want of jurisdiction in the tribunal or there must be an error of law on the face of the proceedings. there is no question in this case of any defect in jurisdiction. therefore, the petitioner would have to show that there is an error of law on the face of the.....
Judgment:
ORDER

D.N. Sinha, J.

1. The facts in this case are shortly as follows : The petitioner (hereinafter referred to as 'the company') carries on business, inter alia, as importers of split betel nuts. On or about July 24, 1959 the company placed an order for split betel nuts with Messrs. T. N. Sharma Ltd., of Penang, Malaya. On or about July 28, 1959 the order was accepted at the rate of Rs. 26-50 nP. per Cwt., c.i.f. Calcutta. According to the letter of acceptance, the goods were to be shipped by the first available steamer. The goods were actually shipped on or about August 24, 1959 after which the company was apprised of the shipment and cleared the shipping documents. On or about September 8, 1959 the consignment arrived at the Port of Calcutta and bills of entry were duly filled in, as required under the Sea Customs Act. The value declared was Rs. 2531.81 nP. On September 19, 1959 a show-cause notice was issued upon the company by the Assistant Collector for Appraisement, Customs House, Calcutta, a copy whereof is annexed to the petition at p. 10. In that notice it was stated that upon examination of the sample drawn from the consignment imported by the company ex s. s. Nankai Maru from Penang, of split betel nuts, and after comparing them with the value of comparable qualities of the goods imported during the period of despatch and cleared through the Customs House, and on the basis of overseas market reports during the approximate time, it was found that the real value of the goods was at the rate of Rs. 55. 77 nP. per picul c.i.f. Calcutta, whereas it has been declared in the relative documents by the company as Rs. 26.50 nP. per picul c.i.f. Calcutta. Therefore, the goods were undervalued to the extent of Rs. 1840.76 nP. As a result of this misdeclaration of value, the company was directed to show cause why the goods should not be confiscated and a penalty imposed under Section 167, Clause (37) of the Sea Customs Act. The company was further requested to produce a valid import license for the cerrect value of the goods, failing which, it was requited to show cause under Section 167(8) of the Sea Customs Act read with Section 3(2) of the Import and Export (Control) Act, 1947. To this show-Cause notice, the company replied and the reply dated September 28, 1959 is to be found in the annexure to the petition at p. 11. In the explanation, the only point taken was that the betel nuts were purchased at Rs. 26.50 nP. per Cwt. and not picul, sometime in July 1959, but they were shipped some weeks later, because in spite of enquiries made by the company the suppliers postponed the date of shipment alleging that the delay was caused by heavy rains and shipping difficulties. In other words, the only point that was taken was that the value to be considered for the purpose of assessment was the value at the end of July, when the contract for the goods was made. There was no objection on the ground that the company had not been given an opportunity of inspecting the other 'comparable qualities' of goods with which the goods imported by the company were compared. Nor was any objection, taken to the effect that the overseas market reports were not to be relied upon, and that no inspection had been granted thereof to the company. Nor was it stated that the alleged value of Rs. 55.77 nP. per picul c.i.f. was not a correct figure for the real value of the goods on the date of importation. On the 19th October, 1959 a second show cause notice was issued. This is practically a repetition of the first notice excepting that the figures relating to the real value were altered. It was stated that the real value had been ascertained to be Rs. 47.25 nP. per Cwt. c.i.f. whereas the value declared by the company was Rs. 26.50 nP. per Cwt. c.i.f. The goods were therefore undervalued to the extent of Rs. 1,982.45nP. The reason why the second notice had to be given has been made clear in the affidavit in opposition. The first notice had some mistakes in it, so far as the figure's are concerned. For example, the real value of the goods was stated to be Rs. 55.77nP. per picul c. i. f. whereas it Was alleged that the company had declared the value of Rs. 26.50 nP. per picul c. i. f. It is the company itself which pointed out in its explanation that the value declared by the company was not Rs. 26.50 nP. per picul but per hundred weight i.e. Cwt. The second notice therefore corrected some figures, but otherwise remained practically the same. To this second notice, the company refused to show cause. In the reply that was given dated 10th November, 1959, the posi-tion taken up was that a show-cause notice had already been issued and explanation had been given and a hearing had taken place. After that, a second notice was not. permissible. Beyond that, the company refused to show cause upou the merits. I might mention here that upon the second show-cause notice having been issued, the company had in the first instance merely asked for a month's time on the 26th October, 1959. On the 3rd November, 1959, notice was again issued, offering to hear the matter on the 26th November, 1959 but as stated above, the company objected to any further hearing. On the 1st December, 1959 an order was passed by the Assistant Collector of Appraisement, a copy whereof is annexed to the petition and marked as Ex. B. In that order, it was stated that on examination of representative samples drawn from the consignment imported by the company from Malaya, and on comparing the value of the goods with that of goods of like kind and qualify imported at the Port at or about the same time and cleared through the Cus-toms House, and on the basis of the overseas market report of the relevant period, the correct c. i. f. price of the goods was estimated at Rs. 47.25 nP. per Cwt. on or about the date of shipment. The importer Company declared the same to be Rs. 26.50 nP. per Cwt. c. i. f. and consequently there was an undervaluation amounting to Rs. 1,982.45 nP. The order proceeds to state as follows:

'The documents indicate that the goods imported are of 'Chalu quality' and the value estimated by this office is based on this quality imported at this port at about the same time and backed by the overseas market reports. The ascertained c. i. f. value is therefore correct. Further, the licence produced does not cover the estimated value of the goods to the extent of Rs. 1,982.45 nP. and since no other licence has been produced to cover this excess, the importation must be considered unauthorised to the extent. Offence under Section 167 (37) (8), Section C. Act is thus clearly established.'

2. Accordingly, an order was passed confiscating the offending goods valued at Rs. 1,982.45 nP. under 167 (8) of the Sea Customs Act. In lieu of confiscation, the company was given an option under Section 183 of the said Act, to clear the goods on payment of a fine of Rs. 4,600/- within four months from the order.

3. It is against this order that this application is directed. The grounds on which a writ of certio-rari can be issued in such a case are two, namely, --there must be either a want of jurisdiction in the Tribunal or there must be an error of law on the face of the proceedings. There is no question in this case of any defect in jurisdiction. Therefore, the petitioner would have to show that there is an error of law on the face of the proceedings, that is to say, the order of the Assistant Collector of Appraisement dated 1-12-1959. I asked Mr. Das who appears on behalf of the petitioner to formulate the errors of law, which according to him appear on the face of the order, and he has formulated them as follows:-

1. That there has been a violation of Section 30 of the Sea Customs Act in as much as:

(a) The Assistant Collector of Appraisement has fixed his own value arbitrarily without any basis in accordance with law. (Para 23 (e) of the petition).

(b) Time of importation as mentioned in S. 30 means a reasonable time from the time of the placing of the order to the time of the landing of the goods. In this case it is the time when the order was placed.

2. The order of confiscation of the whole goods itself is Contrary to law. (para 23 (j) of the petition).

3. The Customs Authorities meted out unequal treatment to the petitioners in valuing the goods at a much higher rate than other goods contained in the same shipment. (para 23 (f) and (g) of the petition).

4. The second notice could not be issued inasmuch as cause has already been shown to the first notice. The issue of the second notice was mala fide and capricious. (Para 23 (h) and (o) of the petition).

4. The learned Standing Counsel appearing on behalf of the respondents has taken a preliminary objection which is as follows: He argues that before the Tribunal of first instance, the company took only one point, namely, that the real value should be calculated on the basis of the value which was prevalent in Penang, Malaya on or about the date of the making of the contract, that is to say, 28th July, 1959 and that it was not the fault of the company that its suppliers delayed supply for reasons of heavy rain and shipping difficulties. As I have already pointed out, no other objection was taken in the explanation that was put forward. It is argued that in an application of this description, the petitioner cannot be permitted to take a certain point before the Tribunal below and then add to it various other points while making an application for a high prerogative writ, that is to say, points which were never agitated in the Courts below. I think it is well established by now that, generally speaking, an application to this Court for a high prerogative writ of certiorari cannot be allowed on grounds which were not taken in the Courts below and which are being taken here for the first lime. Even when it relates to the question of jurisdiction it has been held that the objection as to jurisdiction ought to have been taken in the Court of the first instance. My attention has been drawn to a decision of Bose, J. in Satyanarain Transport Co. Ltd. v. Secretary, State Transport Authority, West Bengal, : AIR1957Cal638 . The learned Judge has held that a party may by his conduct preclude him-self from claiming a writ of certiorari ex debito justitiae by not raising a point before a Tribunal whose order was being challenged, but raising the point for the first time before this Court. Bose J., relied on the Bombay decision Gandhinagar Motor Transport Society v. State of Bombay, : AIR1954Bom202 . In Harendra Nath Bose v. Judge, 2nd Industrial Tribunal, : (1958)IILLJ198Cal , I have held that when a party to an industrial dispute, though aware of the defect of the jurisdiction of the Tribunal, does not raise it before the tribunal it should not be permitted to take the point for the first time before this Court, in an applicaion for a writ of certiorari. Coming to the facts of this case, I have already stated above that before the Assistant Collector of Appraisement the petitioner company took only one objection, namely, as to the date upon which the valuation was to be made. In my opinion the objection is well-founded that the company should not be allowed to take other points before this Court, in aid of an application for a writ of certiorari. Let me therefore deal with the point which has in fact been taken before the Court pf first instance, namely, about the point of time when the value has to be calculated. The valuation for the purposes of the Sea Customs Act is technically called the 'real value', and this expression has been defined in section 30 of the Sea Customs Act as follows;

'For the purposes of this Act the real value shall be deemed to be --

(a) the wholesale cash price less trade discount, for which goods of the like kind and quality are sold, or are capable of being sold, at the time and place of importation or exportation as the case may be, without any abatement or deduction what-ever, except (in the case of goods imported) of the amount of the duties payable on the importation thereof; or

(b) where such price is not ascertainable, the cost at which goods of the like kind and quality could be delivered at such place without any abatement or deduction except as aforesaid'.

5. It is this 'real value', which the owner has to declare in the bill of entry or shipping bill under section 29 of the said Act. The question is as to what is the 'time of importation'. Upon this point, a Bombay decision has been cited, Ford Motor Co. of India Ltd. v. Secy. of State, AIR 1936 Bom 356. It was held by Beaumont C. J. that the word 'time' in 'at the time and place of importation' does not refer to the precise moment of time at which the goods are unloaded from the ship. There must be a reasonable time allowed in which the sale can take place. The words must be given a reasonable construction, and the phrase 'time and place of importation' must be considered in relation to the particular facts of any given case. It was also laid down that in dealing with commodities, the market price of which may vary from day to day, one would have to take the price ruling on the day of importation, that is to say, of shipment. Therefore, the time of importation has to be considered in the background of the facts of the present case. Although the goods were unloaded in the port of Calcutta on or about the 8th September, 1959 it would be unreasonable to take that as the date for calculating the real value. The company ought to be given a reasonable time, to be determined on the facts of the present case. The Assistant Collector of Appraisement has taken the date of shipment to be the date on which the valuation should be determined. According to Mr. Das, the date should be the date of the contract, which is sometime in the end of July 1959. I fail to see why the date should be taken right back to the date of the contract, just because the supplier finds difficulty on the ground of 'heavy rain and shipping difficulties'. There is nothing to show that owing to these causes it was impossible to send the goods earlier, and in any event, no good cause has been shown why the Customs Authority should make allowance for such inconveniences felt by the supplier. In my opinion, the date of shipment seems to be the earliest point of time to which the 'time of importation' can be relegated. Therefore, upon the only point that has been taken below, no grounds have been advanced to show that the decision was incorrect, so as to justify the issue of a writ of certiorari. Although this is quite sufficient to dispose of this application I will briefly deal with the other points that have been taken. The first point that has been taken is that the valuation has been made arbitrarily, without any basis, that is to say, without any basis in accordance with law. Mr. Das points out that in the impugned order it has been stated that in this case, assessment was not being made under section 30 o( the Sea Customs Act, on an ad valorem basis. He says that this shows a fundamental mistake on the part of the adjudicating authority, because any fixing of the value must be under section 30 and it must be on an ad valorem basis. In my opinion that is not a correct proposition. It is true that the real value must be calculated as defined in section 30, but the statement in the order that in this case the assessment was not being made under Section 30, S. C. Act on an ad valorem basis is perfectly correct. According to the tariff schedule, split betal nuts imported from Penang, Malaya, are assessed according to weight and not on an ad valorem basis. That is what has been indicated in the order. There is no intention of stating that the value is to be determined on any principle otherwise than as laid down in section 30,

6. Next, Mr. Das argues that if section 30 is to be in the picture, then it is apparent that the provisions thereof have not been followed. He says that the matter can only come under Clause (a) of Section 30, and the calculation has obviously been made in violation of the provisions thereof. He argues that no mention is to be found in the order about the wholesale cash price or the trade discount, nor is there any determination as to the wholesale cash price less trade discount for which goods of the like kind and quality are sold or are capable of being sold at the time and place of importation, that is to say, in Calcutta. This argument would have been an excellent one, if it was made before the Tribunal of first instance. If such an objection was made, then indeed the order would have shown how and in what manner these factors had been taken into account, for the purposes of evaluation. The objection not having been taken, the order merely indicated briefly the method of calculation. Goods which were imported at or about the same time, and of the same quality, were compared with specimens taken of the goods im-ported by the company, and they were checked with reference to overseas markets reports, and thereafter the value was determined. These are the only indications we find in the order. There is nothing to show whether and in what manner the wholesale cash price or trade discount was determined. In order to sustain these objections before me, the petitioner would have to take me to the calculations and computations made by the Assistant Collector of Appraisement, These do not appear on the face of the order and, therefore, it cannot be said that there is an error on the face of the proceedings. It is well established that if the Court has to look beyond the order into other documents, then in that case it cannot be called an error on the face of the proceedings.

7. With regard to point No. 2, there seems to be some misunderstanding. Mr. Das's client seems to think that the entire goods have been confiscated. Although it is by no means absolutely clear in the order, there are sufficient indications that the only confiscation has been in respect of the goods of the value of Rs. 1,982.45 nP. which is the excess amount, not covered by the existing permit. In any event, the learned Standing Counsel has made this clear, and has also made it clear that the rest of the goods can be taken delivery of upon complying with the legal procedure, and in the manner laid down by law. In that view of the matter, it is not necessary to consider this point any further.

8. The third point is that the Customs authorities meted out unequal treatment to the petitioner in valuing the goods at a much higher rate than other goods contained in the same shipment. Although this point has been taken, I regret that very little material is to be found in the pleadings before me, in respect thereof. I have been referred to certain market values which are published by the Customs authorities themselves. It appears that other importers imported betel nuts from Penang and their values, according to the petitioner, are not identical. I fail to see how it could be so. There is nothing to show that the quality of those goods were the same, and with regard to different consignments of goods of different qualities the values must necessarily vary. In any event, I do not see how the constitutional safeguard of discrimination at all arises. So far as the law is concerned, it has not been established that any discrimination is contemplated. In my opinion, this point is of no substance.

9. Lastly, with reference to point No. 4 viz., that a second notice could not be issued inasmuch as there was already a first notice to which cause had already been shown, in my opinion, this point is also of not any substance. The explanation why a second show cause notice was issued is perfectly satisfactory. On the face of the first notice, there appears to have occurred several errors. The company itself pointed out that it had purchased goods at Rs. 26.50 per Cwt. and not per picul as mentioned in the said notice. The fact was that the figures on the basis of which the value was arrived at, were found defective and had to be corrected. I do not see any law or rule whereby a second show cause notice is precluded. Of course, a second show cause-notice on identical terms would have been without sense, and if it was issued after the adjudication consequent upon the first notice was complete, that would have been barred by principles analogous to res judicata. Otherwise, I do not see why a second notice could not be given and indeed, the company must have been very badly advised not to have contested the same. However, the result is that the position remains just as it was, and the company lost an opportunity of putting forward additional grounds, which it has now thought fit to agitate for the first time before me.

10. For the reasons aforesaid, no grounds have been made out for my interference and the application fails. The Rule must be discharged. Interim orders, if any, are vacated. There will be no order as to costs.


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