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TMI Blog1955 (8) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... was that in law the articles imported fell under item 45(3) and he was liable to pay duty only at the rate of 30 per cent. The Assistant Collector having assessed them under item 61(8) the petitioner appealed to the Collector of Customs and the Collector of Customs dismissed the appeal upholding the view taken by the Assistant Collector. Mr. Justice Tendolkar has taken the view on a plain construction of the two items the only possible view that any Court can take, that is, that the case of the petitioner falls under item 45(3) and not under item 61(8) and, therefore he issued a mandamus against the Collector who had passed the above order, who happened to be B.N. Banerji directing him to release the articles of the petitioner on his paying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle 227 is an exceptional remedy. If the law lays down a procedure and the law provides a remedy and the law makes it possible for a party to get relief through the ordinary channel, this Court will not permit a party to circumvent the ordinary procedure laid down by law and approach this Court for a special remedy and an order which the Court makes in its discretion. We wish to make it clear also that in this case we do not propose to dismiss the petition because it seems to us that this is an exceptional case and we are permitting the petitioner to obtain this relief strictly on the special facts of this case. 4.In the first place, the learned Judge before whom the petition was presented took the view that in this particular case the q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether the learned Judge was right or wrong in the view that he took he did permit the petitioner to proceed with the merits of the matter and decide the petition on merits. Therefore the petitioner having succeeded and having obtained a writ, the Collector now comes before us in appeal and raises the same contention. The position is that in the order that the Collector made it is stated that the revision application to the Central Government must be preferred within 180 days. That time has passed and strictly there is no right of revision left in the petitioner. Therefore if we were to act in accordance with the decisions which we have given and the view that we have taken and accept the contention of the Advocate General, the result wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eliminary objection which might also be disposed of. The petition was directed against Mr. B. N. Banerji who was the Collector of Customs who made the order challenged. The Advocate General says that Mr. Banerji has ceased to be the Collector, that the new Collector has not been brought on the record, and therefore the petition must fail. We are really surprised that such an objection should be taken on behalf of the Customs Authorities. When Mr. Justice Tendolkar made the order on the 5th July, 1955 granting the writ, Mr. Banerji had already ceased to be the Collector and it was the duty of counsel appearing for the respondent to point out to Mr. Justice Tendolkar that Mr. Banerji was no longer the Collector of Customs, that some other Col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e item 45(3) was enacted the relevant item with regard to stationery was item 45 (a) which was in these terms: "Article made of paper and papier mache: Stationery not otherwise specified, including drawing and copy books, labels, advertising circulars, sheet or card almanacs and calendars, Christmas, Easter and other cards, including cards in booklet forms; including also waste paper". 8.The rate of duty for these articles was 39-3/8 per cent. By reason of this convention at Geneva under item 45(3), which specifically dealt with fountain pens complete, the duty was reduced from 39-3/8 per cent to 30 per cent. The importance of item 45(3) can be realised in that it dealt with a specific article of stationery, viz., a fountain pen, and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperly it falls under item 61(8). If the intention of the Legislature was not to include all fountain pens complete under item 45(3), then the simplest thing was to provide for the exception in that item itself. The Legislature could have provided, "Fountain pens complete other than those having gold top or having a silver top". But when the Legislature has not provided any exception to the item all articles which legitimately fall under that item must be assessed according to the rate of duty applicable to some other item which deals with a general class of articles. The simple question that we have to answer and there can only be one answer to that question—is what is the article with which we are concerned and which is the subject matte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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