9911796707
TMI Blog1961 (1) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... val of the vessel. On May 21, 1957 duty on the said two hundred bags was assessed at Rs. 45,066.66 nP. at the rate of Re. 1 per lb. On May 29, 1957 the petitioner paid the said sum as duty. The said vessel arrived at Calcutta in the end of May 1957 and was berthed at No. 3 Hastings Moorings. Part of the cargo was discharged at the wharf and part was landed on various country boats engaged by the steamer agents. On the discharge of the entire charge the petitioner discovered that seventy bags out of the said consignment of two hundred bags were short landed. On July 30, 1957 the petitioner received a certificate from the Commissioners for the port of Calcutta in form 'B' certifying the said short landing of seventy bags. 3. On August 13, 1957 the petitioner made a claim before respondent No. 1, Assistant Collector of Customs intimating that seventy bags were short landed. The refund claimed was Rs. 15,813. On October 23, 1957 the petitionr received a letter from the Assistant Collector of Customs intimating that unless a certified claim bill accepted by the steamer agent was produced the claim of the petitioner could not be examined. 4. On December 21, 1957 respondent No. 1, Assis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order on appeal final. Such provision in the Sea Customs Act does not take away the power of High Court to quash the order. The remedy of certiorari is not taken away except by express and clear words. It has been held by the Appellate Court that notwithstanding the decision of the Customs authorities on appeal being made final by the Statute certiorari may still issue for excess of jurisdiction or for an error on the face of the record. The Bombay decision in the Glaxo Laboratories case has been referred to and discussed in decision reported in 65 CWN 153. In the Glaxo Laboratories case it was held that at the initial stage of assessment the proceeding is administrative. After the assessment has been completed and there is the order of the Collector on appeal it is a quasi-judicial order and is amenable to the writs of Mandamus and Certiorari. 7. The decision in East India Commercial Company case reported in A.I.R. 1960 Calcutta-1, has in my opinion no application to the fact of this case. In that case the Collector of Customs whose office was situated within the jurisdiction of the High Court at Calcutta passed an order under the Sea Customs Act. The order was confirmed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were loaded in a boat which sank on 27-5-57, since the relative bill of entry was filed on 17-5-57, any loss occurring in respect of the said goods should be borne by the importers as a normal trade risk. As regards the remaining 22 bags shortlanded, the steamer agent has failed to submit satisfactory explanation and consequently necessary penal action has been taken against them. ORDER Having regard to the circumstances of the case, I allow the appeal in so far as it relates to the shortlanding of 22 bags and order that the appellants be allowed in consequential refund. The appeal in respect of 48 bags shortlanded is dismissed as inadmissible." 10.It is curious that the Collector in his order admitted that 48 bags were shortlanded and yet he dismissed the appeal as inadmissible. The Collector's order gives two reasons, first that 48 bags were loaded in a boat which sank on May 27, 1957, secondly, that since the bill of entry was filed on May 17, 1957 any loss occurring in respect of the said goods should be borne by the importers as a normal trade risk. Counsel for the Customs authorities was unable to show any evidence on record that 48 bags were loaded in a boat which sank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cargo which was landed directly or from the cargo which was landed through the medium of the said boats employed by the said agents. The statement in paragraph 9 of the petition has been dealt with in paragraph 8 of the affidavit in opposition. The deponent on behalf of the Customs Authorities states there that the petitioner lodged a claim for refund of duty for 70 bags short-landed. It was not until then that the Custom House became aware of the alleged short-landing. The case of the Customs authorities is that it was aware of the short landing until the petitioner lodged the claim on August 13, 1957. 11.It is obvious that when the Customs Duty was assessed in the month of May, 1957 and when the petitioner paid the duty on May 27, neither of the parties was aware as to what in fact were the goods which had been landed. The duty was assessed and paid before the entry of the goods. The original Bill of Entry marked as an Exhibit in this Court would also show that. Counsel for the petitioner, in my view, rightly contended that the entire assessment was on the basis of the bill of entry which mentioned that 200 bags were to be landed and were thus liable to be assessed to duty. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Mr. Meyer contended that duty was deposited before entry or import, and if there was no landing of goods there was no import. 13.Counsel for the petitioner in my view rightly contended that the amount was paid to the Customs Authorities under error or common mistake of fact that 200 bags would arrive and thus be liable to be assessed. It is indisputable that 70 bags are short landed. The Collector's order admits not merely the short landing of 22 bags but also of 48 bags. There is in my opinion an error as the payment of duty regarding 70 bags. Customs Authorities assessed duty on the basis that 200 bags were to arrive. Counsel for the petitioner posed a question that if the ship never came could the Customs contend that the petitioner could not get back the duty that was paid. The question was raised in order to test the absurdity of the contention of the Customs authorities that under no circumstances would the importer be entitled to refund or repayment of money which had been parted with and deposited with the Customs Authorities. 14.Counsel for the petitioner invited my attention to the fact that, after the petitioner had on February 28, 1958 preferred an appeal, the Assi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction of the certified claim bill. Counsel for the petitioner in my view rightly contended that one of the grounds for the rejection of the petitioner's claim by the Collector was that this document had not been produced. It will appear at p. 27 of annexure to the petition that the petitioner on March 25, 1958 state that in spite of the demand the petitioner failed to get the claim bill accepted by the carriers and that the petitioner filed the suit against the carriers. It did not lie within the petitioner's power to compel the shipping company to produce a document showing that the shipping company accepted liability in respect of the short-landing. I fail to understand and appreciate as to how the Customs Authorities could insist on the production of the certified claim bill and how the petitioner's claim could be rejected on the gound of non-production of that document. The petitioner submitted the Port Commissioners, short-landing certificate. Short-landing has been accepted by the Customs authorities. The Collector's order does not state that import is complete and that therefore there can be no refund. The Customs authorities rejected the petitioner's claim on extraneous co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms Authorities. The remedy in the suit is against the Shipping Company. The cause of action is separate. I am, therefore, of opinion that the petitioner is justified in making this application. 18.The petitioner in the present case has asked for refund of money. This is a difficult question as to whether a court exercising jurisdiction by issue of writs of mandamus and certiorari can order payment of money. There is one old English decision where such payment has ordered D. R. v. Bristol and Exeterry Co., 1845 3 Ry. & Cas, 777 a Corporation as compelled to pay a sum of money pursuant to an agreement which could not been forced by action. Mr. Meyer cited R. V. Elark 5 Q.B. 887 = 114 ER. 1483 as an authority for the proposition that mandamus might be granted for payment of specific sum. The question is not free from doubt in that decision. Mr. Meyer invited my attention to a recent decision of the Supreme Court Universal Imports Agency v. The Chief Controller of Imports and Exports reported in A.I.R. 1961 S. C. 41. In that case Universal Imports Agency filed a petition under Article 32 of the Constitution for quashing orders of the Assistant Controller of Imports and Exports; the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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