9911796707
TMI Blog1966 (7) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... two bills of entry in regard to the consignments of the s.s. Jaladharti as well as of the s.s. Meerkerk are respectively dated September 7/19, 1957 and August 30 to September 19, 1957. The plaintiffs' case was that they had imported the goods under these two consignments as motor-cycle parts but on examination by the customs authority they came to the conclusion that these goods were really component parts of 51 sets of Rixe Mopeds complete in a knocked-down condition. It has been explained that a Moped is a complete cycle with a motor-cycle engine attached to it. Rixe is the trade name under which Mopeds are sold. Thus according to the plaintiffs what was imported was strictly in terms of their licence motor-cycle parts whereas according to the Customs Authorities those parts were component parts from which could be constructed 51 Rixe Mopeds. They contended that what was, therefore, imported into India were the 51 Rixe Mopeds though in a completely knocked down condition. 4. Pursuant to this view the Customs Authorities issued a notice to show cause against the plaintiffs on October 22, 1957 calling upon them to explain, within seven days of its receipt, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se and urged that they had strictly complied with the terms of their licence and that the goods fell within the ambit of Entry No. 295 but the Authorities did not accept this contention and by the two orders both passed on November 80, 1957 the Collector of Customs, Bombay held that the plaintiffs had failed to produce a valid import licence and had imported the goods in contravention of the Import Control Order, under Section 3 of the Imports and Exports (Control) Act, 1947. He held the plaintiffs guilty of having committed offences under Section 167(8) of the Sea Customs Act and imposed several penalties as follows : (1) Confiscation of goods of both the consignments, (2) Option under Section 183 of the Sea Customs Act to pay in lieu of confiscation a fine of ₹ 28,000 in respect of the Jaladharti consignment within four months. (3) A personal penalty of ₹ 9,600 in respect of the said consignment; (4) In respect of the Meerkerk consignment option under Section 183 of the Sea Customs Act to pay in lieu of confiscation a fine of ₹ 8,800; (5) A personal penalty of ₹ 3,700, in regard to the said consignment. Thus the plaintiffs were penalised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lthough it could be said that the Authorities had come to a wrong decision in law still it was a decision which they had jurisdiction to take and that, therefore, the civil Court in a suit could not interfere with that decision even though wrong in law. Reference is also made to the decision of this Court in D.P. Anand v. T.M. Thakore Co., and to Section 188 of the Sea Customs Act which imparts finality to the orders of the Authority. The learned Judge held that the suit as framed is governed by Article 14 of the Limitation Schedule and not as urged by the plaintiffs by Article 62 and, therefore, he held that the suit was barred by limitation having regard to the period of limitation laid down in Article 14. On behalf of the defendants the notice under Section 80 of the Civil Procedure Code served prior to the filing of the suit on November 12,1960 was also challenged as defective and invalid to found the cause of action in the plaint, but the learned Judge held that the notice was a valid notice. That was the only finding which the learned Judge gave in favour of the plaintiffs in the suit. All these findings except the one as to notice have been challenged on behalf of the plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that case Was that there was no bar to the import of parts and accessories of motor cycles even though taken together they could be assembled into a complete motor cycle, 9. Then the Division Bench pointed out what was the duty of the Collector of Customs in such cases, and they observed: What the Collector had to satisfy himself was whether by reference to entry 295 or to either of the two remaining entries mentioned in that licence, the articles imported by the respondents could be said to have be on not covered by any of them. It he had proceeded from that point of view he could have seen that the imports were completely covered by the licence. Since the imports covered by the licence were permitted to be imported, he could not carry his enquiries any further. However, as it happened, he considered all the four indents together, came to the conclusion that excepting for tyres, tubes and saddles the parts and accessories imported by the respondents could be utilised for assembling 80 auto cycles and that the respondents had thus in effect imported 30 auto cycles in a completely knocked down condition, though they did not possess a licence under entry 294 for importing into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rroneous approach to the matter, and, therefore, interference in the writ jurisdiction was permissible. What has happened in the present case is, in our opinion, very much the same. The goods imported under the two consignments were motor vehicle parts falling directly within entry No. 295. No doubt, by assembling those parts, the importer could have obtained for himself 51 Rixe Mopeds. That position was never disputed by the plaintiffs themselves. The bills of entry at exh. A show in what condition the goods arrived. These were undoubtedly at the time of import, motor vehicle parts and that is precisely what the plaintiffs were permitted by their licence to import. There was thus no restriction on the import of these parts and accessories of motor cycles though taken together they could be assembled into a complete motor cycle. Since the imports are covered by the licence within the meaning of the decision, the Customs Authorities could not have proceeded with the enquiry any further. They could not, for instance, have lumped together the two consignments which though imported under one licence arrived separately and were received on different dates and could not have come ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... page 1521 the Supreme Court found firstly that it did not stand to reason that a component part which has no use other than as a component of an article whose importation is prohibited is not included in a ban or restriction as regards the importation of that article , and they added we cannot accede to the position that it is the intention of the rule that importers are permitted to do indirectly... . It must be noticed here that the entry of components into India such as were imported in that case was prohibited whereas in the case before us the both Rixe Mopeds under entry No. 294 as also parts and accessories under entry No. 295 could have been imported. That is the first point of distinction between the Supreme Court decision and the present case. 12. But the further point made upon that decision was that the decision of this Court in D.P. Anand v. T. M. Thakore Co. is no longer good law in view of that decision of the Supreme Court. In this respect the following is the only passage in that judgment (p. 1521): Learned Counsel, however, relied upon an unreported judgment of the Bombay High Court delivered by Mr. Justice Mudholkar when a Judge of that Court in Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order passed, assuming that it was on a wrong view of law was nonetheless an order which fell within their jurisdiction. 14. The leading case on the subject is the decision of the Privy Council in Secretary of State v. Mask Co. In that case the Privy Council laid down two propositions which one finds referred to in most of the subsequent cases. They are (1) the exclusion of the jurisdiction of the civil Courts is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied and (2) that even if jurisdiction is so excluded, the civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. We shall presently show that these principles are settled law, but whatever apparent difference or difficulty that has arisen subsequently is the difficulty in their application. If it is once held that the principle of the decision in D. P. Anand v. M/s. T. M. Thakore Co. is applicable to the present case then there remains little difficulty in holding that the action of the Customs Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in East Fremantle Corporation v. Annois [1902] A.C. 213, at p. 217, as follows : The law has been settled for last hundred years, If persons in the position of the appellants, acting in the execution of a public trust and for the public benefit, do an act which they are authorised by law to do, and do it in a proper manner, though the act so done works a special injury to a particular individual, the individual injured cannot maintain an action. In a word, the only question is, has the power been exceeded? Abuse is only one form of excess. Mr. Sorabjee also invited our attention to a recent decision of the Court of Appeal in England in R. v. Paddington Valuation Officer [1965] 2 All E.R. 836, at p. 842, where Lord Denning, then Master of the Rolls, in discussing the question On what grounds will certiorari lie? observed : ....The Divisional Court thought that it would only lie for excess of jurisdiction or error of law on the face of the list. But the word 'jurisdiction' in this context has innumerable shades of meaning. Some advocates ore prone to say that, whenever a tribunal or other body decides wrongly, it exceeds its jurisdiction. It has only jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court may also be usefully referred to here. They are (1) Verikataraman Co. v. State of Madras [1866] 1 S.C.J. 515, and (2) Firm and Illuri Subbayya Chetty Sons v. The State of Andhra Pradesh [1984] 1 S.C.R. 752. In the former case the Supreme Court laid down the principle thus: The inference of the exclusion of the jurisdiction of the civil Courts should not be generally made. A suit in a civil Court will always lie to question the order of a tribunal created by a statute even if its order is, expressly or by necessary implication, made final, if the said tribunal abuses its power or does not act under the Act but in violation of its provisions. Here again, therefore, the question which can be agitated in a suit in a civil Court is stated to be whether the tribunal acted in accordance with the Act or in violation of its provisions and that is precisely what in our opinion has happened in the case. The same principle was reiterated in State of Kerala v. N. Ramaswami Iyer Sons (1960) 18 S.T.C. 1, at p. 7. Again relying upon the decision of the Privy Council in the case of Mask Co. the principle laid down was : It is true that even if the jurisdiction of the civil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bled to allege that they formed 51 Rixe Mopeds in CKD (Completely Knocked Down) condition. But suppose a licence had been granted to import cycle parts and the importer had imported at intervals of 3 months each (a) 1000 cycle frames from Germany, (b) 2000 cycle wheels from England; (c) 1000 handle bars from France and (d) 1000 chains from the U.S.A. and those parts could fit each other to make a complete cycle, could the authorities still say that the importer had imported 1000 cycles in CKD condition. And what would happen if consignment No. 1 had passed through Customs when it first arrived? Could the authorities still relate back consignments 2, 3 and 4 to consignment No. 1 and say that the importer had imported 1000 cycles? A number of interesting but dangerous possibilities would be opened up. We do not think that the law intended the import trade to be at the mercy of the ingenuity of a particular officer in correlating one item of import with another item, from wherever it came, at whatever time it came, and whatever the condition in which it came. It is these dangerous possibilities against which the Division Bench set itself in D. P. Anand v. T.M. Thakore Co. It was urg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set aside any act or order of an officer of One year The date of Government in his official capacity, not herein otherwise the act or expressly provided for. order. The learned Judge held that this was the Article applicable and, therefore, the plaintiffs' suit was barred by time. It seems to us that even assuming that Article 14 applies, the suit in the instant case would not be barred. The final order was passed when the Board of Revenue rejected the plaintiffs' appeal. That was on January 7, 1900. The suit was filed on February 8, 1961. Now undoubtedly if matters had rested there, the suit would appear to be beyond one year and so barred under Article 14, but there is the fact that the plaintiffs had given the statutory notice under Section 80 of the Civil Procedure Code on November 12, 1960. They would, therefore, be entitled to the two months period in addition to the one year prescribed. If this period of the notice is taken into account then the suit filed on February 3, 1961 would be within limitation. 19. But we do not propose to rest our decision on this footing because, in our opinion, the suit does not fall under Article 14 but would properly fall under Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiffs have based their cause of action in para. 12 of the plaint on allegations of coercion and duress and they have averred that they paid the moneys under protest. Mr. Cooper pointed out that while this is no doubt the case put forward in the plaint, no such case was adumbrated in the notice under Section 80 of the Civil Procedure Code. In that notice, all that was stated was that the orders of the Collector of Customs were illegal upon the grounds stated in para. 9, that the decision of the Central Board of Revenue upholding the orders of the Collector of Customs was wrong and that the plaintiffs were entitled to recover back the amounts of fine and personal penalties paid aggregating to ₹ 45,100/- . Thus it is a simple case of money illegally recovered by the defendants from the plaintiffs and if the orders be illegal then the money is being held by the defendants for the plaintiffs' use. 21. Now no doubt under Section 72 of the Indian Contract Act money paid by mistake or coercion can be claimed back upon an allegation to that effect being established as if upon an implied contract to repay the money, but that is an additional cause of action to the one which is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
