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TMI Blog1939 (7) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... note Clause 3 of which is material. It reads-as follows: It is hereby declared that the acceptance of the-deposit of duty calculated on the declared value and description of the goods specified in this bill of entry before examination and assessment shall not be deemed to imply acceptance by Government of such declared value or description or to affect the rights of Government under Sections 31 and 32, Sea Customs Act, until the Appraising Department shall have finally accepted such declared value and description. 2. The consignment, I have mentioned, consists of articles as different as felt caps, silk haberdashery, hardware, saddlery, pipes, and wooden beams. On 21st February 1939, under existing practice, the duty according to the declared value was deposited in advance. On 22nd February 1939 the Customs Authorities had the goods, opened and they found amongst them not declared 116 packets of cotton cord. They also found that what were described in the invoice I believe as silk tassels and in the bill of entry as silk haberdashery were in fact silk scarves. The latter appears to be a most momentous fact as it makes a difference in duty of the sum of ₹ 5. The 116 packet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... malous order purporting to be made under the power to impose a penalty, but that is not so. Although this is clearly a penal assessment the main contention of the customs before me is not that it is irregular or an anomalous order under Section 167 but that they are entitled to assess, levy and detain irrespective of Section 32 and in particular under Section 87. 4. There were three points which were argued before me by the Advocate-General. The first is that there is no question of assessment under Section 32 and that the only provision providing for assessment is under Section 87. Secondly-and this was the Advocate-General's point with which I was not at the time at all impressed-that Section 32 only applies to a limited class of cases where there is a question of discrepancy of value and no question of class description goods. In other words, Section 32 applied only to a limited class of disputes. Lastly, that under Section 32 the Customs have the option of either detaining or not detaining, of proceeding or not proceeding but they are not compelled to detain the goods under that Section, and not compelled either to deliver them or to sell them or to offer them conditionall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ference between the tariff value goods, and ad valorem goods. Section 30 provides for "real value." Now so far as I can see, "real value" only comes into operation or is only of importance in dealing with non-tariff value goods, i.e. ad valorem goods. Leaving this point as to the antithesis between the two classes of goods, I go on to ask the question regarding Section 39 last clause, by which the Customs Collector may refuse to pass any goods until such deficiency or excess is paid. What is the meaning of "refuse to pass?" Does it mean, detain? Is it the same as clearing order under Section 89? What is the clearing order under Section 89? How were the goods in this case dealt with? When the duty is paid on the declared value are they cleared or are they not cleared? Were they allowed entry or were they not allowed entry? 7. Chapter 9 is headed "Discharge of...." The provisions of the Sections to which I have referred are included in the chapter dealing with "Levy of duty." Chap. 9, Sections 86, 87 and 89 are Sections to be considered. Section 87 upon which the Customs Authorities base their case still appears to me to be the Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he basis that the Customs were bound to proceed under Section 32. The obstacle is Section 106 Sub-section (2), Government of India Act. High Courts have not and cannot exercise any original jurisdiction in any matter concerning revenue or concerning any act, ordered, or done for the collection of revenue according to the usage and practice of the country or law for the time being in force. 9. Now on the operation of that Section there are various decisions, some of this Court and that of the Judicial Committee in Alcock Ashdown & Co. Ltd. v. The Chief Revenue Authority A.I.R.(1923) P.C. 138. In that case it was held that the refusal to state a case under the Income Tax Act for the opinion of the Court on a matter of law did not fall within the prohibition. That was something dehors the collection of revenue or "revenue," that it was something which concerned the judicial powers of the Revenue Authorities. On the facts of this case can it be said that what was done is outside "revenue" or collection of revenue. I think there can be only one answer to this question. I think it is not outside. 10. There arises the further question of law on the demurrer which was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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