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TMI Blog1953 (8) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... ces and tools, parts of completely knocked down cars and trucks, as also some fully assembled trucks. The price of the goods was to be paid in dollars to a certain Bank in the United States against delivery of the relative documents to that Bank. In order that the price might be so paid, the appellant opened various letters of credit with the United Commercial Bank in Calcutta and, thereafter entered into three several forward exchange contracts with the Bank on three several dates in June, 1949 for the purchase of the required dollars. Necessarily, the rate of exchange adopted for the contracts was that prevailing on the respective dates of the contracts, which was a rate in accordance with the then current value of the rupee. Between July 4 and October 25, 1949, the Bills of Lading and other shipping documents relative to the goods arrived at the United Commercial Bank and the appellant took delivery of them on payment in terras of the forward exchange contracts. Between October 10 and November 16, 1949, the appellant filed with the Customs authorities the bills of entry in respect of the goods in accordance with section 29 of the Sea Customs Act and the Customs authorities, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , made and the additional amount charged comprised certain demands, made twice. It is not disputed that if the duplicate demands are excluded, the computation of the balance is in accordance with the exchange value of devalued rupee as prevailing on the dates on which the bills of entry were lodged. 4. The Demand Notices called upon the appellant to make any representation it desired to make against the demands within a time specified in the notices. For some time, there was no response from the appellant at all. Thereafter, by a letter dated the 10/20 December, 1949, written with reference to one of the notices, the appellant stated that by the original assessments the goods concerned had been correctly assessed to duty at the correct percentage, that the exchange rate applicable to the consignments received after the devaluation would be in accordance with the relative forward exchange contracts entered into before the devaluation and that it was only after satisfying themselves that the consignments were covered by the contracts that the Customs authorities had allowed the appellant to clear the consignments at the contracted rate of exchange in accordance with the standing i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the departmental instructions could be made and also in that they had insisted on payment of the additional amount before they would give the appellant a hearing. It was next said that the demands were illegal inoperative and void. It was submitted last that the Customs authorities, having once determined the real value of the goods for the purposes of assessment under the Act and the Rules, were not entitled in law to reopen the question of valuation. 6. As already stated, Mr. Justice Bose issued a Rule in the first instance, but discharged it at the final hearing and dismissed the appellant's petition. The learned Judge held that, in its petition, the appellant had made a disingenuous attempt to make out a case that it had been given no proper opportunity to present its case and, that it had done so by deliberately and carefully suppressing material facts from the Court. The learned Judge thought that for that lack of candour on the part of the appellant, its petition was liable to be thrown out on that ground alone. The learned Judge held, in the second place, that opportunity had, in fact, been given to the appellant and there had been no violation of the principle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xercise their powers of revision and correction in a new form and in a new type of proceeding and so far as this High Court is concerned, the power is not even a wholly new power as regards matters arising within the ordinary, original, civil Jurisdiction, as the present matter did. The Article has created no substantive right, but only provided a new form of remedy through the High Courts which might well have been done by an Act of the appropriate legislature or legislatures. It follows that where the right asserted or the liability denied is one under the ordinary laws of the country and not one arising out of the Constitution, and an assertion or denial has taken place after the Constitution has come into force, it cannot be said that the application of Article 226 is excluded by the fact that such right or liability originated before the commencement of the Constitution, If there is a present threat, there is no reason why the present remedy under Article 226 should not be available and where the threat is based on a right, claimed to have arisen under one of the ordinary laws of the country at some date prior to the Constitution, I can see no reason why Article 226 cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontentions alone. He did not say that the departmental instructions had the force of law, nor that the Central Board of Revenue could not withdraw the concessions regarding foreign exchange contracts, nor that Section 39 was not applicable. Instead, he urged that the action of the Customs authorities was 'ultra vires' the Sea Customs Act, inasmuch as by making the additional demands, they had purported to levy a duty on the dollars with which the price of the goods had been paid, but which had never been imported. Section 29 of the Act requires the importer to state the real value of the imported goods in the bill of entry and section 30 states by clauses (a) and (b) what the real value for the purposes of the Act shall be deemed to be, according as the wholesale cash price for which goods of like kind and quality are sold, or are capable of being sold, at the time and place of importation is or is not ascertainable. Mr. Khaitan contended that neither clause (a) nor clause (b) applied to the case, although the appellant's case in its letters to the Customs authorities had always been that clause (b) applied and although that was the specific contention of Mr. Kar bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lars with rupees and with the dollars it had purchased car parts and it was the car parts and not the dollars which the appellant had imported. Having accepted the price paid for the car parts, the Customs officials, Mr. Khaitan submitted, could not levy any further duty on the value of those goods and they could make a further demand, as they had been making, only by way of levying a duty on the dollars; but since the dollars had not been imported at all, they were trying to levy duty on unimported goods and, therefore, their action was 'ultra vires' the Act. 9. I hope I do not do Mr. Khaitan an injustice when I say that I was a little astonished to find him advancing this extremely involved and wholly unreal argument on the simple facts of the case. I cannot at all see where the Customs authorities were treating the dollars as the imported goods and seeking to levy duty on dollars. Their task being to levy duty on the real value of the goods, which was the real value at the time and place of importation, to be ascertained in a certain manner, they were only saying that the value adopted in the original assessment was not the Calcutta value at the time of importation, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here had been no wrong assessment and the statement has clear reference to what the appellant itself had stated in its letter, namely, that the consignment has been correctly assessed to 30 per cent, duty leviable on CKD truck components imported By us from U. S. A. I can find no admission in the letter that the Customs authorities had accepted the rupee price as paid in terms of undervalued rupee. But all this discussion is really irrelevant, because under section 29 of the Sea Customs Act, read with Section 30, the real value is to be determined in one or the other of the two ways specified in the two clauses of the latter section and the only relevant value is the value at the time and place of importation. If clause (b) of section 30 did not apply, as Mr. Khaitan contended, his client was not entitled to the benefit of the foreign exchange contracts at all, because even the departmental instructions which allowed the benefit and permitted the adoption of the rate of exchange ruling on the dates of such contracts, limited the benefit to assessments under section 30(b). I am accordingly of opinion that Mr. Khaitan's second contention cannot be entertained, both because i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argument the departmental instructions with respect to foreign exchange contracts had no place. I might, however, observe that although estoppel against a statute may not be wholly inconceivable as between two private parties, claiming under so:ne ordinary Act of a general character, there could be no estoppel against the Sea Customs Act in the present case in bar of the claim of the Customs authorities. Mr. Sanyal drew our attention to the decision of the Privy Council in the case of --'Maritime Electric Co. Ltd. v. General Dairies Ltd.', , which seems to be very apposite. There, a private company functioning as a public utility company under an Act of New Brunswick, supplied electrical power to the consumers in a particular city and was regulated by the provisions of the Act as to the rates it could charge. In order to arrive at the correct amount of the electric energy supplied to any premises, it was necessary to multiply the meter dial reading by ten. In the case of one consumer, a company carrying on dairy business, the multiplication was not done, owing to a mistake, for twenty-eight months with the result that during that time, the company was charged for only one- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin the limits of law in asking for the additional amount on the basis of the rupee value at the time of importation, although they might have previously made an assessment on the exchange value of the undervalued rupee, as prevailing on the prior dates of the foreign exchange contracts. I have referred to this matter at all, because Mr. Kar seemed to glance at it once or twice in the course of his reply. 12. Mr. Khaitan made certain submissions incidentally as to whether Clause (a) or (b) would apply in the present case and as to whether the real value, contemplated by section 29 of the Act, could be the cost price. In my opinion, such discussions are not material to the present case. There was never any controversy as to whether section 30 would apply at all or as to whether section 30(b) would apply. The case of both parties had always been that it was section 30 (b) which was applicable and in fact no controversy as regards the benefit of the foreign exchange contracts could have been possible except on the common case of the parties that it was section 30(b) which applied. 13. Mr: Kar, who replied on behalf of the appellant, revived his old point that section 39 did no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es are expected to contain only documents supporting the statements made in the body of the petition and where the petition says that no hearing or opportunity to make a representation had been given, one would not look into the annexures to find evidence of hearing or opportunity. It also appears that the few letters included in the annexures to the petition are all demands by the Customs officials, apparently intended to show how insistent and peremptory they were and they do not include any of the about fifteen letters of the correspondence set out in the annexure to the affidavit-in-opposition. There can be no doubt that the letters had been wilfully suppressed, as the learned Judge thought. In tile case relied on by the learned Judge, an applicant for a writ of prohibition, in trying to make out a case against an income-tax demand on the ground that she was not a resident within the United Kingdom, suppressed facts which might lead the Court to think that there was no substance in her case and that she was in fact a resident so that no Rule 'nisi' ought to issue. Because of such lack of candour and non-disclosure of material facts, a Divisional Court of three Judges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s ground is tenable. As is well known the existence of an alternative remedy is not an absolute bar to the maintenance of an application for a writ. Besides, in the present case, since the Central Board of Revenue had itself taken the action impugned, it can hardly be said that the alternative remedy was or would be an adequate remedy. 16. The duplication of certain demands to which I referred a little while ago is admitted, and it was said before the learned trial Judge that the Customs officials had certainly no desire to realise duty on account of the same goods twice. I must, however, add my condemnation to that of the learned Judge of the inexcusable carelessness displayed by the Customs officials in making these duplicate demands. Demands of this kind not only put members of the public to unmerited harassment, but also bring the department concerned into discredit which is a public mischief. It seems also to be a matter for comment that some of the letters of the appellant were not replied to till after a long time. These however are only minor matters and do not bear upon the main question of relief by way of a writ in respect of the amount properly charged. 17. For th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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