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TMI Blog1965 (5) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of tea. The respondent made arrangement for despatch of the said goods by another vessel s.s. Lokesefjell belonging to Tidemond Line and thereafter applied to the Customs Authorities for amendment of the said shipping bills by deleting the name of the ship s.s. Arsterturm and incorporating the name of s.s. Lokesefjell. By several orders made by the Assistant Collector of Customs for Exports dated 19th April 1962 the said shipping bills were amended as asked for. It appears that in respect of the shipping bills submitted between 24th March 1962 and 30th March 1962 the respondent's account maintained by the Customs Authorities under section 41 of the Sea Customs Act was debited with the sum of Rs. 67,445.40 nP. being the total amount of export duty and cess payable on the basis of the rate of export duty on loose tea at .44 nP. per kilogramme which was the rate prevailing at the time. On 24th April 1962 a notification was issued by the Government of India reducing the rate of export duty on loose tea to .10nP. per kilogramme from .44nP. per kilogramme this new rate came into force with immediate effect. On 26th April 1962 the respondent filed a fresh set of six shipping bills for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant facts and prayed that the technicalities of section 140 of the Act should not be applied to the cases in question. On 18th July 1963 the Additional Collector of Customs allowed the appeals preferred by the respondent and passed the following order :— "Having regard to the circumstances of the case I allow the appeal and order that the appellants be granted refund at the lower rate paid under the second set of shipping bill as a special case. Sd/- S.K. Srivastava Additional Collector of Customs (Preventive)" 5.In this order it was stated that the order made on 18th July 1963 was not an appealable order, but any person aggrieved might prefer an application for revision against the said order to the Central Government within six months from the date of the order. The respondent thereafter moved this Court under Article 226 of the Constitution challenging the validity of the orders passed by the Assistant Collector of Customs dated 15th June 1962 and the validity of the orders passed by the Additional Collector of Customs dated 18th July 1963 and a rule nisi was issued by Banerjee, J. on 19th September 1963. This rule came up for hearing before Banerjee, J. and the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forward by the respondent before the Customs Authorities any case under section 40 of the Sea Customs Act was pleaded or put forward and the only claim that was made was for refund of duty paid in respect of the first set of the shipping bills under section 140 of the Act. In the circumstances, the learned trial Judge was in error in awarding relief to the respondent on the basis of section 40 of the Sea Customs Act. 8.Now the sections of the Act which have a bearing on this question raised on behalf of the appellants may be referred to and considered for the purpose of finding out whether there is any force in the contentions raised on behalf of the appellants. The first section to which reference may be made in section 38 which is as follows :- "38. Alteration of export duty or tariff valuation. - The rate of duty and tariff valuation (if any) applicable to any goods exported shall be the rate and valuation in force when a shipping bill of such goods is delivered under section 137 : Provided that where the shipment of any goods is permitted without a shipping bill or in anticipation of the delivery of a shipping bill, the rate of duty and tariff valuation (if any) applicab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 44 nP. per kilogramme on the basis and assumption that the said rate of duty would continue to be the rate at the time of the arrival of the ship or at the time when the order for entry of the vessel outwards was given. But it transpired that by the time the ship had arrived and the order for entry of the vessel outwards was given, there was a fall in the rate of duty payable and such rate was reduced to .10nP. per kilogramme. So although the respondent was liable to pay duty at the rate prevailing at the time of the arrival of the ship or at the time of the order for entry of the vessel outwards, he was by reason of an error or by reason of misconstruction of section 38 of the Act charged at and was made liable to pay duty at the rate of .44nP. although under the law he was liable to pay duty only at the rate of .10nP. per kilogramme. I, therefore, fail to see why the case of the respondent does not come under the provisions of section 40 of the Act. Section 40 is as follows : - "40. No refund for charges erroneously levied or paid, unless claimed within three months. No Customs Duties or charges which have been paid, and of which repayment, wholly or in part, is claimed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 40, have been substantially stated in the petition in paragraphs 3 to 11 and in grounds (b), (c), (d), (e) and (h), of paragraph is and in paragraph 19 thereof, and mere technicalities therefore should not be allowed to prevent the respondent from getting the reliefs that he can legitimately claim in the facts and circumstances of this case. My learned brother had occasion to consider this aspect of the matter in the case of in re: Sulekha Works Ltd. (A.I.R. 1965 Cal. 98) and he has referred to a decision of this Court and a decision of the Bombay High Court in support of the conclusion arrived at by him in paragraphs 226 and 227 of his judgment at page 144 of the Report and I agree with the conclusion at which he has arrived. Reference may also be made in this connection to the case of Gour Chand v. Pradyumna K. Mullick reported in A.I.R. 1945 Cal. 6 where S.R. Das, J. followed the case in I.L.R. 33 Bom. - 698 and held that the substance of the matter should not and cannot be overlooked altogether in giving way to mere form (Pages 12-13). In my view the learned trial Judge was, therefore, justified in granting, the respondent relief under the provisions of section 40 of the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the facts of the case is a mixed question of law and fact and I do not think that it will be proper to allow the appellant at this stage to take shelter under this technical plea for avoiding liability, if such liability is found to exist." So this case also supports the proposition that even if section 40 is not pleaded, relief can be given on the basis of that section if grounds are sufficiently set out in the petition for attracting the applicability of the provisions of the section. It is true that in this case it was held that no relief could be granted on the basis of section 40, but this decision turned on the special facts of that case. The Division Bench held that in this case the import duty had been paid properly. The goods were on board the ship when it entered the Port of Calcutta and were only lost thereafter. Consequently, it could not be said that any portion of the duty had been paid either by misreading any document or misconstruction of law or any mistake as to any fact or inadvertence committed on the date when the bill of entry was filed. So this case is of no assistance to the appellants before us. 16.Some arguments were addressed to us on the bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se it does not appear from the judgment of the learned trial Judge that any such question of alternative remedy was at all argued before him. But assuming that it was so argued, it is quite clear that the learned Judge has, in exercise of his discretion, thought fit to grant relief to the respondent notwithstanding the fact that the alternative remedy as contemplated in section 191 of the Sea Customs Act existed in this case and was available to the respondent. In the circumstances this Court sitting in appeal would be slow to interfere with this exercise of discretion by the learned trial Judge. Unless it can be shown that the learned trial Judge has exercised his discretion unreasonably or in an arbitrary or capricious manner, the exercise of discretion of the learned trial Judge should not be interfered with by this Court. No serious dispute has been raised before us with regard to the facts of this case. The orders impugned in the writ petition appear to have been passed in excess of jurisdiction and on an erroneous interpretation of the relevant provisions of the Statute. There is error apparent on the face of the record and the orders passed by the Additional Collector of Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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