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Additional Collector of Customs and anr. Vs. Best and Co. - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtKolkata High Court
Decided On
Case NumberAppln. for leave and appeal to Supreme Court in Appeal No. 254 of 1963 (Matter No. 167 of 1962)
Judge
Reported inAIR1966Cal398
ActsLimitation Act, 1963 - Schedule - Article 132 - Section 12(3); ;Constitution of India - Articles 133(1) and 226; ;Sea Customs Act - Section 167(8); ;Import and Export (Control) Act, 1947 - Section 3(2)
AppellantAdditional Collector of Customs and anr.
RespondentBest and Co.
Appellant AdvocateA.C. Mitter, Standing Counsel
Respondent AdvocateSankar Ghosh, Addl. Collector
DispositionApplication dismissed
Cases ReferredJijibhoy N. Surti v. T. S. Chettyar Firm
Excerpt:
- .....that the value of the subject-matter of the dispute in the appeal was more than rs. 20,000. mr. ghose argued that if the said order was valid the petitioners would be entitled to realise the penalty as also the fine in lieu of confiscation and if the order was invalid, as had been held by this bench, the penalty and the fine could not be realised, and in fact no effect could be given to the said order, which had been quashed. the question involved in the appeal was not regarding the realisation of the penalty and fine but regarding the legality and validily of the said order. therefore. mr. ghose argued, the valuation test required by article 133(1)(a) and (b) of the constitution was not satisfied. in support of this contention mr. ghose relied upon the decisions reported in 48 ind.....
Judgment:

B.C. Mitra, J.

1. This is an application for a certificate under Article 133(1)(a)(b) and (c) of the Constitution.

2. An import license was granted to the respondent by the Govt. of India for import of certain machinery, for manufacture of and for bifurcating rivets, from West Germany. By this license the maximum c. i. f. value or the goods to be imported was fixed at Rs. 45,000 subject to the condition that the license was granted having quantity and value as the limiting factor and was not valid for clearance if the actual value of any item, exceeded the c. i. f. value specified in the license by more than 5 per cent.

3. The machines arrived at Calcutta pout and the respondent submitted a bill of entry in which the c. i. f. value of the machines was shown at Rs. 44,843.61 nP. and the total value inclusive of all landing charges amounted to Rs. 45,179.92 nP. Customs duty was assessed on the value of the goods as declared in the bill of entry and on payment of such duty, the respondent cleared the goods. On receiving information that the value of the goods had been misdeclared, customs authorities searched the business premises of the respondent and also of the agents of the manufacturers at Calcutta.

4. Various letters and documents were seized and according to the petitioners these letters proved that the value of the Roods had been misdeelared by the respondent.

5. On June 19/20, 1961, a show cause notice was issued, calling upon the respondent to show cause why penal action should not be taken under Section 167(8) of the Sea Customs Act. In this notice the respondent was charged with illegal importation of goods of the value of Rs. 6750.74 nP., being the excess value of the machines, which were not covered by the import license. Several explanations were submitted by the respondent to the said show cause notice and personal hearing was granted to it. By an adjudication order dated 17-3-1962 it was held that the charges against the respondents had been established and a personal penalty of Rs. 25,000 was imposed on the respondent. An order for confiscation of the machines under Section 167(8) of the Sea Customs Act read with Section 3(2) of the Import and Export (Control) Act, 1947, was also made. By this order the respondent was directed to pay a fine of Rs. 20,000 in lieu of confiscation within a week of the receipt of the order, and in default the respondent was directed to surrender the machines within 10 days of the said order. A penalty of Rs. 25,000 was also imposed by this order on the agent of the manufacturers of Calcutta.

6. Thereafter the respondent moved an application in this Court under Article 226 of the Constitution challenging the legality and validity of the said order dated 17-3-1962 and for an order directing the petitioners not to give effect to the same and also for an order for quashing the said order. A Rule Nisi was issued, which was discharged by Banerjee, J. by an order made on 2-9-1963. The respondent thereafter preferred an appeal against the said order discharging the Rule and this appeal was disposed of by this Bench by a judgment dated 18-12-1964, whereby the said appeal was allowed, and the judgment and order of the trial Court were set aside am! appropriate writs were directed to be issued. The petitioners now propose to prefer an appeal to the Supreme Court and this application has been mane for a certificate as hereinbefore mentioned tor the purposes of this appeal.

7. The learned Standing Counsel appealing for the petitioners submitted that the amount or value of the subject matter in dispute between the parties was and still is not less than Rs. 20,000, and that in any event the judgment and order involved directly or indirectly some claim or question regarding property of the like amount or value. He also submitted that the case was a fit one for appeal to the Supreme Court. It was argued that validity of the order dated 17-3-1962 was the subject-matter of the writ petition and by the said order a penalty of Rs. 25,000 was imposed on the respondent. He further argued that if the said order was valid the respondent would be liable to pay a penalty of Rs. 25,000 and also a fine of Rupees 20,000 in lien of confiscation, and further the manufacturer's agent would be liable to a penalty of Rs. 25,000. On the other hand if the said order was invalid and made without jurisdiction neither the said two sums of Rs. 25,000 imposed by way of penalty nor the fine of Rs. 20,000 imposed upon the respondent in lieu of the confiscation of the machines be realised. It was therefore argued that the value of the subject-matter of the dispute still is more than Rs. 20,000. At any rate Mr. Mitter argued the judgment and order of this Bench involved directly or indirectly a claim or question regarding a sum of over Rs. 20,000.

8. Mr. Sankar Ghose, learned counsel for the respondent, on the other hand, contended that the subject-matter of the dispute between the parties was the validity of the said order dated March 17, 1962. This order, according to Mr. Ghose is not capable of valuation. It was argued that although the effect of the order might be realisation or non-realisation of the penalty and fine of an amount exceeding Rupees 20,000 it could not be said that the value of the subject-matter of the dispute in the appeal was more than Rs. 20,000. Mr. Ghose argued that if the said order was valid the petitioners would be entitled to realise the penalty as also the fine in lieu of confiscation and if the order was invalid, as had been held by this Bench, the penalty and the fine could not be realised, and in fact no effect could be given to the said order, which had been quashed. The question involved in the appeal was not regarding the realisation of the penalty and fine but regarding the legality and validily of the said order. Therefore. Mr. Ghose argued, the valuation test required by Article 133(1)(a) and (b) of the Constitution was not satisfied. In support of this contention Mr. Ghose relied upon the decisions reported in 48 Ind App 31: : AIR1963Cal13 and : (1957)IILLJ517Pat .

9. We are not impressed by the contention raised by Mr. Ghose. The subject-matter of the dispute between the parties is the validity of the order which imposes penalty and also fine of more than Rs. 20,000. If the order is a valid order, as was contended by the learned counsel for the petitioners, a sum of Rs. 50,000 could be realised as fine in lieu of confiscation of the machines. On the other hand if the order is invalid, the said sums cannot be realised. Therefore the judgment and the order of this Bench directly involved some claim or question regarding a sum exceeding Rs. 20,000. For this reason we hold that the valuation test laid down in Article 133(1)(a) and (b) of the Constitution have been satisfied.

10. The judgment of this Bench is a judgment of reversal, and therefore as the said valuation test, in our view, has been satisfied, the petitioners would be entitled to a certificate as prayed for. In that view of the matter it is not necessary for us to consider if the case is a fit one for appeal to the Supreme Court under Article 133(1)(c) of the Constitution But Mr. Ghose contended that the certificate could not be granted, even if the valuation test was satisfied, as this application was barred by the law of Limitation.

11. Mr. Ghose submitted that this Bench delivered the judgment reversing the decision of the trial Court on 18-12-1964. On the nest day viz. 19-12-1964, requisition was filed on behalf of the petitioners for drawing up of the order and for a certified copy of the judgment. On 18-1-1965 certified copy of the judgment of this Bench was received by the petitioners. On 10-3-1965, the present application was moved and was noted as made on that date. This application has been filed before a certified copy of the order was obtained, but a certified copy of the judgment has been obtained by the petitioners and a copy of the same has been annexed to the petition. Mr. Ghose argued that it was plain that this application could be moved without a certified copy of the order and it was not necessary for the petitioners to wait for the same. He argued that as the petitioners had moved this application on the basis of the judgment of this court, a certified copy of which had been obtained as early as 18-1-1965 it was plain that it was not necessary for the petitioners that the order should be drawn up and a certified copy of the same should be obtained for the purpose of this application.

12. This application is governed by Article 132 of the Lim. Act 1963, by which the period of limitation prescribed is 60 days. Under Section 12(2) of the said Act the time requisite for obtaining a copy of the order is to be excluded. Therefore Mr. Ghose argued that the period between 19-12-1964 and 18-1-1965 on which date the certified copy of the judgment was obtained, was to be excluded, and after exclusion of this period, the application should have been made within 60 days from 18-1-1965 but as it was made only on 10-5-1965 this application. Mr. Ghose argued, was barred by limitation. The 60 days prescribed by Article 132, Mr. Ghose argued, was to be computed from 19-1-1965 and according to Mr. Ghose, limitation for this application expired on 10-3-1965. But as the application was in fact made on 1.0-5-1965 Mr. Ghose argued- if was barred by limitation.

13. It was next argued by Mr. Ghose that if the petitioners had in fact obtained a certified copy of the order before making this application, they would have been entitled to claim that the time required in obtaining a certified copy of the order was to be excluded as provided in Section 12(2) of the Lim. Act. But as that has not been done, Mr. Ghose argued, the petitioners could not claim that the application was not barred by limitation, even though it had been moved without a certified copy of the order having been obtained by the petitioners. In support of this contention Mr. Ghose relied upon a decision of the Judicial Committee in Jijibhoy N. Surti v. T. S. Chettyar Firm, 55 Ind App 161: (AIR 1928 PC 103). That was an appeal from the Rangoon High Court, under the Rules of which an appeal could be presented without annexing a copy of the decree or a copy of the order, but in fact the copies of the decree and order were annexed to the application. It was held that Section 12(2) of the Lim. Act directed that the time requisite for obtaining the two documents was to be excluded from computation. But it was also held at p. 170 of the report (IA): (at p. 105 of AIR) as follows:

'If, indeed, it could be shown that in some particalar class of cases there can be no object in obtaining the two documents, an argument might be offered that no time could be requisite for obtaining something not requisite.''

It is, therefore, clear that in order to successfully claim exclusion of the time taken in obtaining a certified copy of the decree or order, the applicant must show that such a certified copy was requisite for the purpose of the application. In this case Mr. Ghose argued that as the application had been made without a certified copy of the order having been obtained by the petitioners, it was not open to them to contend that the delay in making the application should be excused as it was caused in obtaining a certified copy of the order. Mr. Ghose next referred to a Bench decision of this Court reported in : AIR1954Cal520 , in which following the decision of the Judicial Committee mentioned above, it was held that a party could have the benefit of Section 12 of the Lim. Act if he annexed to the memorandum of appeal a certified copy of the judgment appealed from. Mr. Ghose next referred to a Bench decision of the Allahabad High Court reported in : AIR1934All367 , in which also it was held that although a copy of a judgment sought to be reviewed need not be presented with the application for review, it must be held that when the applicant had in fact, obtained a copy of the judgment, time should be excluded under Section 12(2) of the Lim. Act 1908. The Allahabad High Court in coming to this conclusion followed the decision of the Judicial Committee mentioned above. In support of this contention, Mr. Ghose also relied upon two decisions reported in AIR 1952 Bhopal 39 and . Relying upon these decisions Mr. Ghose contended that it was now well settled that where an applicant filed a copy of the judgment or decree with his appeal, time taken in obtaining a certified copy or such a judgment or order was to be excluded, even though it was not necessary for the applicant to annex a copy of the judgment and order. It was argued that Section 12(2) of the Lim. Act 1963, could be invoked by the petitioners only if they had annexed a copy of the order to the petition for certificate. But as this has not been done, and only a copy of the judgment has been annexed to the petition, the time taken in obtaining a certified copy of the judgment only is to be excluded. The delay in moving this application Mr. Ghose argued could not be excused merely because the order had not been drawn up, when the application was moved without a copy of the said order being annexed to the petition. In our opinion, this contention of Mr. Ghose is well founded. If the petitioners had annexed a copy of the order along with the copy of the judgment to the petition, they could have claimed exclusion of the time taken in obtaining a certified copy of the order from the computation of the period of limitation, but as the application has been moved without a copy of the order, it cannot be said that the time taken in obtaining a certified copy of the order was 'requisite' as contemplated by Section 12(2) of the Limitation Act.

14. Mr. Mitter, however, sought to repel the contention of Mr. Ghose by contending that his clients had a statutory right to the exclusion of the time required in obtaining a certified copy of the order. In support of his contention, Mr. Mitter also relied upon the decision of the Judicial Committee in 55 Ind App 161: (AIR 1928 PC 103) (supra) and argued that in that case the Judicial Committee had held that Section 12 of the Limitation Act, 1908, directed that the time requisite for obtaining the two documents was to be excluded for computation. Mr. Mitter argued that the question whether a copy of the order was annexed to the petition or not was absolutely immaterial, as the statute had conferred upon his clients the benefit of exclusion of the time taken in obtaining a certified copy of the order from the computation of the period. Therefore, Mr. Mitter argued that his clients could wait until a certified copy of the order was obtained, but in fact they did not wait for obtaining the certified copy of the order, and had moved the application before obtaining a copy of the same.

15. In support of this contention Mr. Mitter relied upon a decision of the Supreme Court reported in : [1961]2SCR918 in which it was held that where a decree was not drawn up immediately or soon after the judgment was pronounced and a litigant felt aggrieved by the decision and applied for a certified copy of the judgment and the decree, he did all what he could and had made a proper application for obtaining the necessary copies. In such a case the time requisite for obtaining the copies must include not only the time taken for the actual supply of the certified copy of the decree itself but also the time taken in drawing up the decree. It was also held that the time taken in drawing up a decree after a litigant had applied for a certified copy would be treated as a part of the time taken for obtaining the certified copy of the decree. This decision is of no assistance to the petitioners as the question in this application is not whether the time taken in drawing up of the order is to be excluded, but whether such time is to be excluded even when the application has been made without a certified copy of the order having been obtained by the applicant. Mr. Mitter also referred to a decision of this Court reported in : AIR1964Cal438 . This decision again is of no assistance to the petitioners as the question in this application is not whether the time taken in drawing up of the order is to be excluded, but whether such time is to be excluded even when the application has been made without a certified copy of the order having been obtained by the applicant. Mr. Mitter also referred to a decision of this Court reported in : AIR1964Cal438 . This decision again is of no assistance to the petitioners as in this case the certified copy of the judgment was obtained before an application for leave to appeal under Clause 15 of the Letters Patent was made. It was not a case in which an application was made without obtaining a certified copy of the judgment. The next ease relied upon by Mr. Mitter is a Bench decision of this Court reported in 85 Cal LJ 299. In that case the question arose whether Section 12 of the Lim. Act 1908, would apply at all if the period of limitation had been allowed to expire before an application for a certified copy of the decree appealed from had been made and it was held that the time requisite for obtaining a copy began to run in favour of the appellant front the date on which he applied for a copy. But if time had already run out against the appellant, he could not rely upon Section 12 of Lim. Act for exclusion of the time taken in obtaining a certified copy of decree. This decision also is of no assistance to the petitioners.

16. We cannot accept the above contention of Mr. Mitter, Exclusion of the time required in obtaining a copy of the order could be allowed, if and only if, a copy of the same was annexed to the petition. But, if in fact, the application could be moved, as it has been moved, without a copy of the order, there was no excuse for the delay in moving this application beyond a period of 60 days from 18-1-1965, on which date a certified copy of the judgment was obtained, a copy of which has been annexed to the petition. In our opinion, the law on this point is well settled, namely that the time taken in obtaining a certified copy of the judgment and order would be excluded as provided in Section 12(2) of the Lim. Act, if a copy of the same is annexed to the petition, even though it is not necessary to annex a copy of the same to the petition. But if an application is moved without a copy of the order, a claim for exclusion of the time taken in obtaining a copy of the order from computation of the period of limitation cannot be sustained. For these reasons, we hold that this application is barred by the law of limitation.

17. In the result, this application is dismissed with costs.

Bose, C.J.

18. I agree.


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