1. This appeal must fail on two technical grounds, although Mr. Roy was able to make some kind of One point, which also was, however, technical in character.
2. The appeal is directed against an order or Base J. dated 4-6-1952, by which the learned Judge discharged a Rule obtained by the appellants under Article 326 of the Constitution for the issue of various writs upon respondent No. 1. In the end Mr. Roy limited himself to only one ground of attack.
3. It is not necessary to state the facts at any great length. Suffice it to say that, in the year 1949, the appellants imported 1,000 drums of what was described by them as 'solvent oil mineral spirits.' The goods were cleared on 9th and 10th of August, 1949, when a duty of only 3 annas per Imperial Gallon was charged and paid upon the appellants executing a guarantee bond to the effect that if the substance contained In the drums turned out to be something different from what they had declared it to be and to be liable to a higher duty, they would be bound to pay such duty as also such penalty as might be imposed. Therefore, it appears a test of a sample quantity taken from one of the drums was held and according to the Analyst's report, the constants agreed with those of mineral turpentine. On receipt of the report, the Customs authorities took the view that the substance, contained in the drums was not solvent oil as it had been declared to be, but was mineral turpentine or some turpen tine substitute which was liable to higher duty under item 30(4) of Schedule I of the Tariff Act. Accordingly, they served a notice on or rather wrote a letter to the appellants informing them of the result of the test and asking them to explain why action should not be taken against them under Ss. 167(8) and 167(37), Sea Customs Act.
The appellants replied to that notice or letter by a letter of their own, dated 23-11-1949, and the substance of that reply was that the test report was inconclusive and furnished no ground for say-Ing that the substance concerned was mineral turpentine and not solvent oil. A further statement was made to the effect that the substance had been imported as a cleaner solvent. It appears that thereafter the Customs authorities directed the appellants to furnish evidence that the substance in question had actually been sold in the trade as a cleaner solvent. In response to that requisition, the appellants furnished the Customs authorities with the names of five parties to whom the oil had been sold. The Customs authorities were still not satisfied and asked the appellants to furnish copies of the letters they claimed to have received from two of their' customers by which it had been complained that the substance supplied to them was not satisfactoryand was not serving the purposes of solvent oil. (SIC) is not surprising that the Customs authorities did not take these letters as evidence of the sale of the substance as cleaner solvent, for what the letters clearly show is that the substance had been sold to the writers as solvent oil. The Customs authorities apparently took the view that the conclusion drawn by them from the result of the test had not in any way been shaken or dislodged and on 11-4-1950, the Collector of Customs passed an order directing the appellants to pay a further sum of Rs. 8,557/- as extra duty and imposing on them a fine of Rs. 65,300/- under Clauses 8 and 37 of Section 167, Sea Customs Act. This order was subsequently amended by an order passed on 10-7-1950, when the order imposing a fine was converted into an order imposirig a personal penalty, the amount payable and the party made liable remaining, however, the same.
4. The order of the Collector of Customs is appealable under the law and it appears from the paper-book that an appeal was actually filed by the appellants. We are informed that that appeal is still pending before the Board of Revenue. Nevertheless, the appellants moved this Court under Article 226 of the Constitution of India on 16-8-1951, and obtained a Rule 'nisi' upon respondent No. 1, Mr. Rajaram Rao, who was the Collector of Customs at that date, directing him to cancel or recall and/or forbear from acting on and/or giving effect to his decisions dated the 4th of May and the 18th of July, 1950, and also to forbear from realising the sum of Rs. 73,857/- which was the total sum payable under those orders. He was also asked to show cause why an order in the nature of a writ of certiorari should not be made by this Court, calling upon him to certify and produce the records and proceedings in respect of his decisions in order that they might be quashed and also why a writ of prohibition should not issue against him, prohibiting him from taking any steps in connection with the assessment of the goods and from realising the penalty imposed on the appellants. A rule in the same terms was also issued upon one Stanley Cliffard Hardless, respondent No, 2 in the present appeal, who, it appears, was one of the partners of Stanley Oil & Company, the importing firm, but had evidently fallen out with his copartners. It appears that the dates of the Collector's orders, as given in the Rule 'nisi', were not correct.
5. The Rule came up for final hearing before Bose J., and what seems to have been urged before him was that the orders complained against were bad, inasmuch as the appellants had not been given proper or full opportunity of showing cause against the finding of the Customs authorities as also the penalty imposed by them. Bose J., held that the fullest opportunity had been given and, therefore, the appellants' application under Article 226 could not succeed. In that view he discharged the Rule. Thereupon, the appellants filed the present appeal.
6. In the course of his argument Mr. Roy, who appeared on behalf of the appellants, touched on one or two points which related to the merits of the decision arrived at by the Customs authorities but with his usual fairness, he did not press them For example, the observed in passing that the finding of the Customs authorities that the substance contained in the drums was mineral turpentine was not a correct finding, because the ingredients or characteristics as disclosed by the test held by the Customs authorities tallied substantially with those disclosed by the Analysis Certificate Survey Report made at the port of origin. What had been analysed at the port oi origin was solvent oil mineral spirits according to the Survey Report and Mr. Roy appeared to contend that if the result of the analysis at the port of origin tallied substantially with that of the analysis held in Calcutta, there would be little ground for saying that the substance was not solvent oil.
When it was pointed put to Mr. Roy that there was another finding of the Calcutta Analyst to the effect that the constants of the substance analysed by him agreed with those of mineral turpentine and that, in any event, the question was one of the correctness of the decision of the Customs authorities on the merits which could not be a proper subject, for review under Article 226, he did not press the point further. The only point which Mr. Roy urged with any degree of insistence was that the second order passed by the Collector of Customs, which was the only order that really hit him, was bad, inasmuch as it had been passed in the absence of his clients. It was pointed out that the order of 11-4-1950, imposed on the appellants what was called a 'fine'. But what was imposed by the later order of the 10th July was a 'penalty'. Mr. Roy's contention was that the only authority which the Customs Officers had to impose a fine was that contained in Section 183 of the Sea Customs Act, which was clearly not applicable to the present case. The original order imposing a fine was, therefore, a bad order, but the defect of that order had been removed by the subsequent order of the 10th of July which altered the fine into a penalty and thus brought the monetary punishment within the ambit and the language of the Sea Customs Act. This, however, had been 'done without giving the appellants an opportunity of showing cause against the alteration and, therefore, the forms of legal process had been departed from and the rules of natural Justice violated.
7. Mr. Banerjee, who appears on behalf of the respondent No. 1, made no attempt to Justify what his client had done, but he contended that the alteration was not one of substance. To a certain extent that contention is undoubtedly correct, inasmuch as, the party -made liable and the quantum of the penalty were In no way altered. Mr. Roy undoubtedly, it is true, advanced the extreme contention that although the amount might remain the same, it could not be a penalty legally Imposed if it was called a fine, unless the circumstances of the case brought HI within the purview of Section 183 of the Sea Customs Act which they did not. As I pointed out to Mr. Roy in the course of the argument, the difference in the present case was a difference only in name and If the Collector of Customs, after imposing a monetary punishment and finding that he had wrongly called ft a fine, changed the name andcalled it a penalty, he had not thereby acted prejudicially to the appellants in any matter of substance. I am not saying for one moment that what was done by the Collector of Customs was right or that he set an example which other Collectors should follow. What he did is to be deprecated and, as I have said, Mr. Banerjee made no attempt to defend the Collector's action. When an order made against certain parties is in any way altered, it is but just and fair that it should be altered in their presence, although they may have no conceivable case to make out against the alteration. But what we have to consider here is whether the irregularity which had occurred makes the present case a fit one for our interference under Article 226 of the Constitution and whether any useful purpose would be served by our issuing a writ. I am inclined to think that the answer must be in the negative, because the appellants had been given the fullest opportunity for showing cause against any liability being imposed on them and on their case having failed and a liability being imposed, what was subsequently altered was only the description of the liability. We are however relieved of the necessity of pursuing this matter further because, as I have already said, the appeal must fail on two technical grounds.
8. I shall take the simpler of them first. It appears that before this Court had been moved for a writ under Article 226, of the Constitution, the appellants had already preferred an appeal under Section 188, Sea Customs Act and that appeal was then and is still pending. It is quite true that when there is an alternative remedy, the mere existence of such remedy is not an absolute bar to the entertainment of an application under Article 226, but far different is the case when the party moving the Court under Article 226 has already availed himself of the alternative remedy and whether or not he is entitled to any relief in that chain has not yet been decided. I am clearly of opinion that having preferred an appeal from the impugned orders under Section 188, Sea Customs Act, the appellants could not be allowed to move this Court under Article 226 and that at a time when their appeal was still pending and undecided. The present application was not, therefore, maintainable.
9. But assuming it was, there is another and a more fundamental difficulty in the appellants' way. As I have stated already, the Rule 'nisi' was principally directed against respondent No. 1, Mr. Rajaram Rao, who had been the Collector of Customs at the time of the dispute with the appellants and who had passed the impugned orders. The first return to the Rule was made by one Mr. Vaswani, an Assistant Collector of Customs and he pointed out that Mr. Rajaram Rao had ceased to be the Collector of Customs in Calcutta and was then functioning as a Member of the Central Board of Revenue at New Delhi. In a return subsequently made by Mr. Rajaram Rao himself, he also stated, that fact. It is surprising that the appellants did not yet take any steps to amend their application and the Rule 'nisi' and bring on record the successor to Mr. Rajaram Rao in order that an effective order could be passed against him, if the appellants succeeded in proving their case. I may point out here that the Union of India was not made a party to the proceedings at all, so that if Mr. Rajaram Rao was no longer the Collector of Customs in Calcutta and if to ask him to cancel or recall his orders or to forbear from giving effect to his decisions or realising the penalty or to send up the records for the purposes of the proceedings being quashed had come to be meaningless, there was no one else against whom a valid and effective order could be made. The party against whom the appellants asked for writs of various kinds was Mr. Rajaram Rao and the rule 'nisi' was directed against him by name. In those circumstances, the rule, if it was made absolute, could be made absolute only against him. But, as I have pointed out, to do so would be to require him to do what he could not possibly do and to give to him a direction which would be utterly meaningless.
Mr. Roy referred us to certain passages in Halsbury wherefrom it appears that under the Crown Side Rules obtaining in England, at least at the time when the passages in Halsbury were written, a return to a writ could be filed by a person other than the person to whom the writ had been directed and if it was expressed as a return by the former, the Court could act upon it and allow the proceedings to be continued in his name in spite of the death or resignation or retirement of the other person against whom the writ had originally been issued. The passage in Halsbury does not appear to me to help Mr. Roy for two reasons, one being that it is based upon a special rule obtaining in England and the other being that it does not relate to a position such as we find in the present case. If someone had made a return on behalf of, say the Union of India, then the Court might have allowed such a return to be made and in spite of the transfer of Mr. Rajaram Rao might have allowed the proceedings to continue and made an absolute order which it would be the duty of the Union of India to carry out.
Mr. Roy realised that the facts of the present case were quite different and what he asked for was not that we should make an absolute order against the present Collector of Customs straightway, but that we should allow him to amend his application with a consequential amendment of the rule 'nisi'. He was, however, quick to realise that such an amendment, even if we allowed it, would involve him in even greater difficulties. In the first place, the present Collector of Customs, if impleaded by an amendment and brought on the record, would at once say that no justice had ever been demanded of him and, therefore, no question of his having denied justice to the appellants could arise. If, on the other hand, we made an absolute order against the present Collector without any amendment of the application, he could say that an order had been made against him without giving an opportunity of showing cause against it. From whatever angle the matter may be looked at, it appears to me that the appellants had created for themselves a situation out of which they cannot extricate themselves with any chance of the Court being able to make a valid and effective order in their favour, evenif they succeeded in making out a case on the merits. On the merits too, they appear to have no case.
10. For the reasons given above this appeal must, in my opinion, fail. In view, however, of the irregularity to which I have referred in the course of the judgment, there will be no order for costs in this appeal.
11. I agree.