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ThIn Yen Vs. Secy. of State and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1939Cal763
AppellantThIn Yen
RespondentSecy. of State and anr.
Cases ReferredThe Queen v. Essex County Court Judge
Excerpt:
- .....70 was passed by parliament for the purpose of preventing the interference of the supreme court in revenue matters, section 8 of that statute provides that the court shall not have or exercise any jurisdiction in any matter concerning the revenue, or concerning any act or acts ordered or done in the collection thereof, according to the usage and practice of the country, or the regulations of the governor-general in council. parliament has since seen fit to impose similar limitations upon the jurisdiction of the original side of the high courts.6. it is true that there was no such provision in the high courts act, 1861, 24 & 25 viet. c. 104, nor in the letters patent issued under it. indeed, it appears from pars. 17 of the secretary of state's despatch of 14th may 1862, that he considered.....
Judgment:

Panckridge, J.

1. This suit has been set down for the trial of the issue whether this Court has jurisdiction to entertain it. The following are the facts: In December 1934 two consignments of goods arrived in Calcutta by sea per S.S. 'Hosang' for the plaintiff. A person named Achan was the plaintiff's authorized clearing agent. One consignment consisted of 66 packages, and I will call it the 'A' consignment, the other consignment consisted of 35 packages and I will call it the 'B' consignment. There was a bill of entry in respect of the 'A' consignment which showed that the packages bore no marks; it also showed that there were no silk goods among the contents. On 14th December 1934 seven packages were seized by the Customs House Authorities of which one was subsequently released. As regards the remaining six the Customs House Authorities assert that they were seized in the public street outside the Customs House, whither the plaintiff's agent had caused them to be removed. The plaintiff's case is that they were still within the precincts of the Customs House, awaiting examination. 'When the packages were examined they were found to contain dutiable silk goods of considerable value. The packages were admittedly part of the 'B' consignment, and the Customs House Authorities suggest that what the plaintiff's agent was doing was attempting to remove them without paying duty, under cover of the bill of entry relating to the 'B' consignment, the contents of which were either not dutiable at all, or only dutiable to a trifling extent.

2. Subsequently the plaintiff received a notice to show cause why the goods in the packages which had been seized should not be confiscated and a penalty imposed on him under Section 167 (37)(c) and (38), Sea Customs Act, 1878. An enquiry followed, and on 11th July 1935 the second defendant in his capacity as Collector of Customs passed an order for confiscation of the goods under Section 167(37) of the Act subject to a redemption penalty of Rs. 3500, and imposed a penalty of Rs. 4000 under Section 167(38). Section 167 creates certain offences against the Act, and provides maximum punishments for committing them. Under item (37)(c) of the Schedule, if it be found, when any goods are entered at, or brought to be passed through, a Customs House, either for importation or exportation, that the contents of such packages have been misstated in regard to sort, quality, quantity, or value, such packages together with the whole of the goods contained therein shall be liable to confiscation. Under item 38, if when any goods are passed by tale or by package, any omission or misdescription thereof tending to injure the revenue be discovered, the person guilty of such omission or misdescription shall be liable to a penalty not exceeding ten times the amount of the duty which might have been lost. It is not disputed that the order was one which under Section 182 of the Act the Collector of Customs had power to make. That Section is a part of Chap. 17 of the Act, which is headed 'Procedure relating to offences, appeals etc.' Section 188, which is part of the same Chapter, gives a right of appeal to the Chief Customs Authority to any person deeming himself aggrieved by any decision or order passed, by an officer of Customs under the Act. The plaintiff appealed under this Section to the Central Board of Revenue; but on 2nd October 1935 the Board dismissed the appeal.

3. With regard to these orders the plaintiff states that they were altogether void, in-valid, illegal and inoperative, and not binding on him. No offence under Section 167(37) or (38), Sea Customs Act, had been committed. Alternatively no offence under such Sections or either of them had been committed by the plaintiff. Prior to the passing of the-Collector's order the plaintiff had not been charged with any offence under either o such Sections, nor had. he been called upon to meet or answer any such charges. Further there was no, or alternatively no proper, adjudication arrived at in manner provided by the Sea Customs Act: and the proceedings were not conducted in accordance with the principles of natural justice. Under Section 191 of the Act the Governor. General in Council may, on the application of any person aggrieved by any decision or order passed under the Act by an officer of Customs or Chief Customs Authority, and from which no appeal lies, revise or modify such decision or order. The plaintiff petitioned the Governor-General in Council under this Section, and on 2nd March 1936 the Governor-General in Council modified the Collector's decision by setting aside the penalty, although he upheld the order for confiscation. The Governor-General's order stated that he was satisfied that the goods were removed from the Customs House with the intention of defrauding the revenue. He was of opinion however that the facts did not fall under item 37 or 38 of Section 167, and that the imposition of a penalty under item 38 was therefore not justified. In upholding the order for confiscation he stated that; it should have been passed under Section 167(36), which provided that if after any goods have been landed, and before they have been passed through the Customs House, the owner removes them or attempts to remove them, with the intention of defrauding the revenue, such goods shall be liable to confiscation.

4. The plaintiff challenges the legality of this order, and he states that no offence under Section 167(36) had been committed, that he had never been charged under Section 167(36), nor had he been called upon to meet or answer any such charge. Further there was no, or alternatively no proper, adjudication arrived at in the manner provided by the Sea Customs Act, and the proceedings were contrary to the principles of natural justice. A declaration that the orders for confiscation were illegal is asked for, and there are also prayers for return of the goods, or for a decree for their value. The issues which I have now to try are raised by paras. 4 and 10 of the written statement of the Secretary of State.

Paragraph 4. - The decision of the chief Customs Authority as modified by the Governor-General in Council is final and binding upon the plaintiff and is not liable to be challenged or impugned by any suit or proceedings.

Paragraph 10.-This Court has not and Cannot exercise any original jurisdiction in respect of the subject-matter of the suit inasmuch as the same concerns the revenue or the collection thereof.

5. I will first deal with the issue raised by pars. 10. The history of the law on this point begins with the practical difficulties occasioned by the fact that the Supreme Court claimed to exercise jurisdiction in respect of acts done by the servants of the East India Company in collecting the revenues of Bengal, to which the Company was entitled by virtue of the grant of the 'Diwani'. As its Preamble indicates 21 Geo. 3, Cap 70 was passed by Parliament for the purpose of preventing the interference of the Supreme Court in revenue matters, Section 8 of that Statute provides that the Court shall not have or exercise any jurisdiction in any matter concerning the revenue, or concerning any act or acts ordered or done in the collection thereof, according to the usage and practice of the country, or the Regulations of the Governor-General in Council. Parliament has since seen fit to impose similar limitations upon the jurisdiction of the Original Side of the High Courts.

6. It is true that there was no such provision in the High Courts Act, 1861, 24 & 25 Viet. c. 104, nor in the Letters Patent issued under it. Indeed, it appears from pars. 17 of the Secretary of State's despatch of 14th May 1862, that he considered that the restrictions on the jurisdiction of the Supreme Court enacted by 21 Geo. 3 Cap 70, did not apply to the High Courts established by Letters Patent under the. Act of 1861. Moreover, in 1876 in 1 Mad 891 a majority of the Court held that a similar restriction contained in the Charter of 1800 establishing the Supreme Court of Madras did not operate to exclude suits against Revenue Officers for acts done ultra vires, from the jurisdiction of the Madras High Court. This question is however academic in view of Section 106(2), Government of India Act, 1915, and Section 226(1), Government of India Act, 1935. These sub-sections run as follows:

106(2). The High Courts have not and may not exercise any original jurisdiction in any matter concerning the revenue, or concerning any act ordered or done in the collection thereof according to the usage and practice of the country or the law for the time being in force.

226(1). Until otherwise provided by Act of the appropriate Legislature, no High Court shall have any original jurisdiction in any matter concerning the revenue, or concerning any act ordered or done in the collection thereof concerning to the usage and practice of the country or the law for the time being in force.

7. It is admitted that for the purposes of the present case the sub-sections may be regarded as identical. As the Advocate-General points out, there is direct authority on the matter in Madras: see Govindarajulu Naidu v. Secy. of State (1927) 14 A.I.R. Mad. 689. In that case certain goods belonging to the plaintiff were seized by the Customs Authorities, and the Collector of Customs ordered confiscation and sale of the goods on the ground that they had been smuggled into British India and had not paid duty. After an unsuccessful appeal to the Governor in Council the plaintiff sued the Secretary of State on the ground that what was done amounted to a wrongful conversion of the goods. Though the orders complained of were not made under the Sea Customs Act the principles were the same as those applicable in the, present case. Coutts-Trotter C.J., and Beasley J. both held that Section 106(2), Government of India Act, 1915, was a bar to the suit on the Original Side of the Madras High Court. Coutts-Trotter C.J. said:

Finally the point is taken on behalf of the Secretary of State that this is a matter aflecting the revenue and that Section 106(2), Government of India Act, covers the matter. On that subject, I have nothing to add to what I said in my own considered judgment which is reported in Best and Co. Ltd v. Collector of Madras (1919) 6 A.I.R. Mad. 715 where I had to consider all the decisions affecting this matter and came to the conclusion that, however antiquated the Section is and however useless to present conditions, so long as it was allowed to stand in the statute book it must be given effect to and the effect is this, that in matters affecting the revenue the Original Side of this Court and that side alone is debarred from interfering in revenue matters. The Section came to birth, nearly hundred years ago, when there was a conflict of jurisdiction between the Sudder Courts and the High Courts. That conflict has utterly vanished and there is no justification whatever for preserving this antiquated fossil on the statute book; but there it is, and so long as it is there we have to abide by it. I am quite clear that this is a matter affecting the collection of revenue though it be in the nature of a penalty and that therefore this Court had no jurisdiction to entertain the suit on that ground.

8. Beasley J.'s view was as follows:

It is contended by the defendant that this is a matter concerning the revenue or concerning an act done in the collection thereof; and it is not out of place in this connexion to mention what is done with goods seized and confiscated. They are sold and the proceeds go to the customs. Part of the revenue of the country is derived from the customs and the collection of the customs is a collection of part of the revenue of the country and I am prepared to hold that the sale of seized and confiscated goods and the taking by the customs authorities of those proceeds is the collection of customs and therefore of revenue. It is admitted by Mr. Narasimha Ayyar that penalties in the shape of double or treble imposed on smuggled goods would be revenue. It he contends that the money derived from the sale of seized or confiscated goods is not. I cannot myself Bee any distinction whatever. I may conjecture that one of the objects of the sale is to recoup the customs for the unpaid duty which, had it been paid, would have been revenue. But there is another obvious reason for this penalty and it is this: persons who bring dutiable goods into the country are required to declare their possession of them and to pay the proper duty which is then collected from them and becomes part of the revenue of the country. That is clearly the collection of revenue. If, however, persons smuggle dutiable goods into the country they prevent the collection of the duties and so the revenue. The object of the seizure and confiscation is two-fold, to punish the offender and to deter others from preventing or hindering the collection of revenue; and it seems to me impossible to hold that the seizure and confiscation of smuggled goods is not an act ordered or done in the collection of revenue, as it is obviously designed to facilitate the collection of customs and therefore the revenue.

The decision in Alcock, Ashdown and Co. Ltd. v. Chief Revenue Authority of Bombay (1923) 10 A.I.R. P.C. 138 has in my opinion no application to this case. That case dealt with a mandamus to the income-tax officer to make an assessment and was a matter which was merely a preliminary towards the assessment of the assessee. The acts complained of in this case were not in any sense preliminary but in my view directly related to the collection of customs. I may add that the question as to whether or not Section 106(2), Government of India Act, does prohibit the exercise by this Court of its original jurisdiction in revenue matters has been decided by the learned Chief Justice in best and Co. Ltd. v. Collector of Madras (1919) 6 A.I.R. Mad. 715 the he there decided that the Section was an express prohibition against the exercise of such powers. I need not say more than that I entirely agree with his judgment and with the reasons he gave therein.

9. Mr. Mukherjee, who has argued the plaintiff's ease with great ability, has drawn my attention to two decisions of the Prive Council, Ford Motor Co. of India Ltd. v. Secy. of State and Vacuum Oil Co. v. Secy. of state Both suits were instituted on the Original Side of the High Court of, Bombay, and in both of them the plaintiffs sued to recover duty said to be overpaid. In Vacuum Oil Co. v. Secy. of state the trial Judge made a decree in the plaintiff's favour which was reversed on-appeal. The Judicial Committee however set aside the decree of the Appellate Court dismissing the suit, and restored the decree passed by the trial Judge. In Ford Motor Co. of India Ltd. v. Secy. of State the Judicial Committee upheld the decree of the Appellate Court dismissing the plain-tiff's suit. Both cases turned on the construction of Section 30, Sea Customs Act. Mr. Mukherjee argues very pertinently that it was never suggested that either suit was incompetent, and that from the fact that in one of them the decree obtained by the plaintiff was restored, it follows that the Judicial Committee must have considered that the Original Side of the Bombay High Court had jurisdiction to try it. The Advocate-General had not attempted to argue that these two suits were not 'matters concerning the revenue,' but he says that as the point was not raised, Government must be taken in each case to have deliberately waived it with a view to obtaining an authoritative and final decision on the question of construction. In the report of the ford Motor Company's case in Ford Motor Co. of India Ltd. v. Secy. of State that it was agreed that) the defendant would waive 'certain technicalities' with a view to a speedy decision of the case. Whether one of them was the question of jurisdiction I have no means of saying. It must be borne in mind however that cases are only authorities for what is actually decided, and not for propositions which appear to follow logically there from. I feel I cannot from the fact that the Privy Council restored a decree made on the Original Side of High Court of Bombay drew an inference that it thereby decided that) the suit was competent, when the question of jurisdiction was not in issue.

10. Mr. Mukherjee next submits that this is not a matter concerning the revenue but rather concerning an act ordered or done in the collection thereof, a submission which I am disposed to accept. He then argues that the jurisdiction of the Court is only ousted if such an act be ordered or done according to the usage and practice of the country on the land for the time being in force. Therefore he says that the court must examine the circumstances to see if the action of the authorities was lawful, because, if it was not lawful the Section does not protect it. A similar argument was unsuccessfully urged in Best and Co. Ltd v. Collector Of Madras (1919) 6 A.I.R. Mad. 715 a case in which the plaintiffs sued for a declaration that an agreement made between the parties with reference to the liability of the plaintiffs for income-tax was binding on the defendant. The defendant repudiated the agreement because he took the view that in consequence of subsequent legislation it was no longer effective. Couttstrotter J. held that Section 106(2), Government of India Act, 1915, was a bar to the suit. In dealing with the argument now advanced the Court observed at page 26:

Mr. Grant took the further point that the fetter in my jurisdiction was only with regard to 'acts ordered or done in the collection of the revenue according to the usage and practice of the country or the law for the time being in force,' and he says, 'If you go into the facts, on the merits you will find that my contention is well founded, that this was an illegal repudiation of the agreement.' That contention, I think, was disposed of as long ago as 1818 in a judgment of their Lordships of the Privy Council in Spooner v. Juddow (1845-51) 4 M.I.A. 353. In that case the court put a construction on a protective statute of this kind which, so far as I know, has never been departed from, and it is put in much clearer words than I can put it, by Lord Campbell in giving their Lordships' opinion at p. 379 of the report. What he says is this. 'The point therefore is whether the exception of jurisdiction only arises where the defendants have acted contrary, and the Regulations of the Governor and Council. But upon this supposition the proviso is wholly nugatory for if the Supreme Court is to enquire whether the defendants in this matter concerning the public revenue were right in the demand made, and to decide in their favour only if they acted in entire conformity to the Regulations of the Governor and Council of Bombay, they would equally be entitled to succeed, if the statute and the charters contained no exception or proviso for their protection. Our books actually swarm with decisions putting a contrary construction upon such enactments, and there can be no rule more firmly established, than that if parties bona fide and not absurdly believe that they are acting in pursuance of statutes, and according to law, they are entitled to the special protection which the Legislature intended for them, although they have done an illegal act,' It is not suggested in this case that, the Collector of Madras or the Secretary of State acted male fide or purported to seek the protection, of the statute with the full knowledge that all that was being done was to commit a mere act of aggression. Whether they were right or wrong, they thought clearly and honestly that they were taking advantage of the provisions which the statute allowed them to take advantage of, in terminating this agreement. I am therefore compelled to hold that this Court had no jurisdiction, to entertain this suit.

11. I think similar observations are applicable to the case before me. None of the very vague statements in the plaint amounts to an averment that the Collector of Customs directed the confiscation of the goods mala fide, or in the exercise of powers-conferred on him by Sea Customs Act in the circumstances to which he knew the provisions of the Act were not applicable. In my opinion no irregularity of procedure, and no error in the conclusions arrived at can per se exclude the application of the Government of India Act. I accordingly accept the reasoning in the Madras decisions to which I have referred, and I hold: that this is a suit which the Original Side of this Court has no jurisdiction to entertain.

12. The issue raised by pars. 4 of the written statement must also, in my opinion, be decided in the defendants' favour. It is a well-known principle that where a statute creates a duty or imposes a liability, and prescribes a specific remedy in case of neglect to perform the duty or discharge the liability, no remedy can be taken but the particular remedy prescribed by the statute. Lord Esher observed in The Queen v. Essex County Court Judge (1887) 18 Q.B.D 704 at p. 707, 'where the Legislature has passed a new statute giving a new remedy that remedy is the only one, which can be pursued.' In my view the: Legislature intended that the sole remedy open to those who were aggrieved by a decision or order passed by an Officer of Customs under the Sea Customs Act should be the appeal to the Chief Customs Authority provided by Section 188. The matter is, I think, placed beyond doubt by the concluding words of the Section-'Every order passed in appeal under this Section shall subject to the power of revision conferred by Section 191 be final.' I have been referred to a decision of Gentle J. of the Madras High Court reported in one of the unauthorized series of reports, in which he takes this view of the effect of Section 188, and I find myself in entire agreement with him. It would be contrary to all principle to permit the plaintiff after unsuccessfully agitating his grievances before the statutory appellate authority then to seek the assistance of the Court. I have had before me an admitted brief of the documents in the case. A perusal of it produces a conviction in my mind that at every stage the representations of the plaintiff received careful consideration, and that the conclusions of the Collector and of the Central Board of Revenue were arrived at in good faith. What is however more important is that learned Counsel for the plaintiff was constrained to admit that, although he wag prepared to criticize the conduct of the proceedings before the Collector, he could not point to anything improper or unjudicial in the scanner in which the Board exercised the jurisdiction conferred on it by Section 188.

13. The order passed by the Governor-General in Council under Section 191 of the Act on be briefly dealt with. I incline to the view that orders made under this Section Joan, in no case, be questioned in the Civil Courts, except possibly orders which while purporting to be made under it are clearly outside it. An order by the Governor-General in Council enhancing penalty would in my opinion possibly be such an order. Generally speaking however what the Section contemplates are revisional orders of an executive character. It should be pointed out that the order of confiscation is the order of the Collector and not the order of the Governor-General in Council. It is true that in upholding it the revising authority expressed the opinion that it should have' been made under Section 167(36) and not under Section 167(37). This observation has enabled the plaintiff to argue that his good have; been confiscated in respect of an offentff1 with which he was never charged. Although it is true that the original notice to show cause only referred to Section 167(37) and Section 167(38), an examination of the record of the proceedings shows that his grievance in this respect is illusory. On 11th October 1935 a lengthy memorial as submitted to the Finance Department of the Government of India on the plaintiff's behalf in support of his application under Section 191. The first fifteen paragraphs of the memorial dealt with the facts.

14. Two paragraphs follow which contain submissions as to the law applicable if the revising authority is in agreement with the Board of Revenue on the facts. These sub-missions are to the effect that the offence shown, if the facts are held to be established, is one under Section 167(36). To quote the memorial 'Farther if Section 167(36) does not fit the case under enquiry like a glove, what case will fit it?' It is ridiculous for the plaintiff to complain that the Governor-General in Council accepted his submission of law and accordingly set aside the penalty imposed by the Collector. I hold that this suit must be dismissed with costs, because the Court lacks jurisdiction to entertain id for the reasons set out in pars. 4 and 10 of the written statement of the Secretary of State.


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