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TMI Blog1954 (11) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... 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-In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 opp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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