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Chimanlal Desai Vs. the Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtKolkata High Court
Decided On
Case NumberMatter No. 120 of 1954
Judge
Reported inAIR1956Cal542
ActsSea Customs Act, 1878 - Section 167(8); ;Imports and Exports (Control) Act, 1947 - Section 3(2)
AppellantChimanlal Desai
RespondentThe Union of India (Uoi) and ors.
Appellant AdvocateH.N. Sanyal, ;Sisir Dutt and ;A.R. Choudhury, Advs.
Respondent AdvocateG.P. Kar and ;Arun Mukherji, Advs.
Excerpt:
- .....the petition. they are 'sirens' which, according to the petitioner, have been adapted for use in motor cycles. after importation, on or about 31-5-1954, the assistant collector of customs for appraisement, issued a show-cause notice on the petitioner, the purport whereof is set out in para 14 of the petition. it called upon the petitioner to show cause why the goods should not be confiscated and action taken under section 167(8), sea customs act, read with section 3(2) of the imports and exports (control) act. the basis of this was that according to the opinion held by the customs authorities, the sirens imported were not covered by the import license which the petitioner had in respect of motor vehicle parts, and consequently these goods were imported without a license. the petitioner.....
Judgment:
ORDER

Sinha, J.

1. The petitioner in this application is an importer of goods from abroad. He has a license to import motor vehicle parts. In pursuance of the license, he has imported certain goods described in para. 6 of the petition. They are 'sirens' which, according to the petitioner, have been adapted for use in motor cycles. After importation, on or about 31-5-1954, the Assistant Collector of Customs for Appraisement, issued a show-cause notice on the petitioner, the purport whereof is set out in para 14 of the petition. It called upon the petitioner to show cause why the goods should not be confiscated and action taken under Section 167(8), Sea Customs Act, read with Section 3(2) of the Imports and Exports (Control) Act. The basis of this was that according to the opinion held by the Customs Authorities, the sirens imported were not covered by the import license which the petitioner had in respect of motor vehicle parts, and consequently these goods were imported without a license. The petitioner was heard, and on 29-8-1954 it was held by the Deputy Collector of Customs that the goods, as they have been imported, being designed to carry their own battery cell, are suitable for use on ordinary cycles, and as such are correctly assessable, to duty under item 75(8) Indian Customs Tariff, requiring an import license issued under serial No. 301 of Part IV of the Import Trade Control Schedule'. The order was that the goods should be confiscated outright under Section 167(8), Sea Customs Act read with Section 3(2) of the Imports and Exports (Control) Act, 1947.

2. This rule was issued on 30-8-1954 and calls upon the respondent to show cause why a writ in the nature of certiorari should not be issued quashing the said order of confiscation and also why an order in the nature of a writ of mandamus should not be made prohibiting or restraining the respondents from taking any steps under, or in respect of, the said order, and for other reliefs.

3. The whole point for determination in this case is as to whether item 295 in the Import Trade Control Schedule applies or item 301. These two items are as follows:

Item 295 -- Articles (other than rubber tyres and tubes) adapted for use as parts and accessories of motor cycles and motor scooters, except such articles as are also adapted for use as parts and accessories of motor cars.

Item 301 -- Parts and accessories of cycles (other than motor cycles) excluding rubber tyres and tubes but including iron and steel bolts and nuts adapted for use on cycles and also mild steel tubes for cycle frames in lengths cut to sizes and screwed, e.g., steering tubes.

4. It is apparent from the above that in of der to find out whether a particular thing came under item 295 or item 301, it will have to be decided as to whether the article (other than rubber tyres and tubes) is adapted for use as a part and accessory of a motor cycle or a motor scooter. There is an exception, e.g., when such goods are also adapted for use as parts and accessories of motor cars, with which we are not however concerned in this case. If the article is found to be adapted for use as part and accessory in motor cycles and motor scooters, then it must come under item 295. Item 301 speaks of parts and accessories of cycles other than motor cycles. Therefore, a particular article is either part or accessory of a cycle or it is. not. If it is part and accessory of a cycle, then 'prima facie' it would come under item 301, unless it can be shown that it was adapted as part and/or accessory to a motor cycle. The Customs Authorities have held that the goods in question were 'suitable for use on ordinary cycles'. This appears to me to be wholly a wrong approach. The Customs Authorities are not called upon to find put whether a particular article in question is suitable for use in cycles or not, but the question is whether it constitutes a part and accessory to cycles or has it been adapted for use as part and accessory to a motor cycle or a motor scooter. A more difficult question would arise if it is part of or accessory to a cycle but adapted for use as part of or accessory to a motor cycle or a motor scooter. In that case, the proper way of looking at it would be to find out whether it has been adapted for use in motor cycles and motor scooters. If in its adapted state it still continues to be usable as part of and accessory to cycles, it is not taken out from item 301. But when I say 'usable', I do not mean physically usable. The thing in its adapted state must still continue to be such as a cyclist would normally use as a part or accessory of a cycle. In such a case, the Customs Authorities would be entitled to charge at the higher rates. On the other hand, if it has been adapted for use as part of, and accessory to motor cycles, or motor scooters, in such a way as to make the intention clear that it would be exclusively so used, then it is not open to the Authorities to consider as to whether such goods are 'suitable' for being used as accessory to cycles or not. As Mr. Sanyal has pointed out, whether it is an administrative or quasi-judicial order, the petitioner is entitled to have the assessment made under the proper legal provision, and the respondents cannot by an arbitrary decision, transform goods' belonging to one category into goods belonging to another, and then confiscate the same.

5. It is not necessary nor appropriate to decide here and now whether the 'siren' in question comes under item 295 or item 301, but it is clear that the order made by the Authorities is bad, because their whole approach to the question has been incorrect. Consequently, the order dated 29-8-1954, made by the Deputy Collector of Customs (Respondent No. 3) and set out in para. 17 of the petition, must be set aside and quashed. The rule is therefore made absolute, and a writ in the nature of certiorari issued. There will also be a writ in the nature of mandamus, directing the respondents not to give effect to the said order. The matter will go back to the proper authority to decide whether it comes under item 295 or item 301, according to law. I have already indicated the proper approach to that question. Mr. Sanyal contended that it might be that by the time the matter comes up for consideration before the Authorities, the regulations or entries in the schedule would be changed, and that only such regulations should be considered as were applicable at the date of the confiscation. Mr. Mukherjee appearing on behalf of the respondents sees no objection to this. The assessment must be made according to law. If subsequent regulations have changed the assessment, the question to be considered would be whether such changes are retrospective and can relate back to the time when the confiscation was made. This is of course without prejudice to the rights of the respondents to take fresh action under any new regulation which might have been passed. Mr. Sanyal states that the goods which include batteries, have been lying unused for over a year and the matter should be expeditiously decided. Mr. Mukherjee appearing on behalf of the Customs Authorities assures me that the matter will be expedited. There will be no order as to costs. Let a plain copy of my judgment be supplied to the solicitor for the respondents.


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