9911796707
TMI Blog1961 (4) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... e fountain pens thus imported had nibs which were gold plated and also caps and clips of similar composition. The question in controversy relates to the rate of duty to be charged on these imported pens. The Schedule to the Indian Tariff Act, 1934, has an item numbered 45(3) in relation to the article described as "fountain pens complete", the rate of duty being 30 per cent ad valorem. It was the case of the respondent that the imported goods fell within this item and were liable to be charged with duty at that rate. The Customs authorities, however, considered that the consignment fell within the description "articles plated with gold or silver" being Item 61(8) on which duty was payable at 78.3/4 per cent. The Assistant Collector of Customs adjudicated the duty on this latter basis and thereafter the respondent having filed an appeal to the Collector of Customs, the levy was upheld by order dated February 22, 1955. 3. Section 191 of the Sea Customs Act enables any person aggrieved by an order of the Collector of Customs to file a revision to the Central Government. The respondent, without resorting to this remedy, filed a writ application in the High Court of Bombay to quash the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld fall under any item other than 45(3) or be charged a duty other than the 30 per cent provided under that item. Dealing with the other point about the writ petitioner not having exhausted his statutory remedy of Revision to the Government, the learned Chief Justice disagreed with the view of the learned Single Judge that the Customs authorities lacked or exceeded their jurisdiction in assessing duty at a higher figure than was justified by the relevant items of the Schedule to the Tariff Act. The learned Chief Justice, after pointing out that it was the settled practice of the Bombay High Court not to entertain writ petitions by parties who had not exhausted their statutory remedies, however, held that in the case before the Bench the remedy of applying in Revision to the Central Government had become time-barred by the date of the hearing of the appeal and that on that ground he would not interfere with the order of the learned Single Judge. The appeal was, therefore, dismissed. The Collector of Customs having obtained special leave from this Court has brought this appeal before us. 6. The learned Solicitor-General appearing for the appellant argued the appeal on the basis tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities that notwithstanding Entry 45(3) reading "fountain pens complete" there could practically be no import of pens under that item, because with the limit of value prescribed in the licence, the permitted pens would mostly have gold-plated nibs. Different considerations might arise when gold or gold plating is used not for purposes essential for the utility of the pen as such, but merely as an addition to its value. These cases have been excepted by Justice Tendolkar and we endorse his remarks on this point. No such question arises on the pens imported by the respondent and it was obviously because of this, that the learned Solicitor-General did not address us on the correctness of the interpretation placed on relative scope of entries 45(3) and 61(8), by the learned Judges of the High Court. 8. The only point, therefore, requiring to be considered is whether the High Court should have rejected the writ petition of the respondent in limine because he had not exhausted all the statutory remedies open to him for having his grievance redressed. The contention of the learned Solicitor-General was that the existence of an alternative remedy was a bar to the entertainment of a pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke that special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of another remedy does not affect the jurisdiction of the Court to issue a writ; but, as observed by this Court in Rashid Ahmed v. Municipal Board, Kairana, AIR 1950 S.C. 163, `the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs.' vide also K.S. rashid and Son v. The Income-Tax Investigation Commission, AIR 1954 S.C. 207. And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under Article 226, unless there are good grounds therefor." There is no difference between the above and the formulation by Das C.J., in State of Uttar Pradesh v. Mohammad Nooh, 1958 SCR 595 at pp. 605-607, where he observed : "........It must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well-established that, provided the requisite grounds exist, certiorari will li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry case which comes up before the Court. 11. The question that we have now to consider is, has the discretion which undoubtedly vested in the Court been so improperly exercised as to call for our interference with that order. We might premise this discussion by expressing our opinion on two matters merely to prevent any misunderstanding. First we entirely agree with Chagla, C.J., that the order of the Assistant Collector of Customs in assessing duty at 78.3/4 per cent or of the Collector of Customs in confirming the same, was not void for lack of jurisdiction. The interpretation they put on the relevant items in the Tariff Schedule might be erroneous, even grossly erroneous, but this error was one committed in the exercise of their jurisdiction and had not the effect of placing the resulting order beyond their jurisdiction. Secondly, as we have already indicated, we must express our dissent from the reasoning by which the learned Judges of the High Court held that the writ petitioner was absolved from the normal obligation to exhaust his statutory remedies before invoking the jurisdiction of the High Court under Article 226 of the Constitution. If a petitioner has disabled himself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the law correctly lest error creep into the administration of justice. But where the error is only in the application of the law correctly understood to the facts of a particular case, we should be persuaded that there has been a miscarriage of justice in the case before us before being invited to interfere; and this the learned Solicitor-General has not succeeded in doing. It would be remembered that the question is not whether if the respondent's application were before us, we should have directed the writ to issue, but whether the learned Judges of the High Court having in their discretion which they admittedly possessed made an order, there is justification for our interfering with it. The two matters set out earlier should suffice to show that no interference could be called for in this appeal. 13. We consider, therefore, on the whole and taking into account the peculiar circumstances of this case that the High Court has not exercised its discretion improperly in entertaining the writ application or granting the relief prayed for by the respondent and that no case for interference by us in an appeal under Article 136 of the Constitution has been made out. The appeal fails a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oneous for party who by his own conduct deprives himself of the remedy available to him, cannot have a better right to a writ than a party who has not so deprived himself. Normally and the present case has not been shown to be other than a normal case a writ of mandamus is not issued if other remedies are available. There would be stronger reason for following the rule where the obligation sought to be enforced by the writ is created by a statute and that statute itself provides the remedy for its breach. It should be the duty of the courts to see that the statutory provisions are observed and, therefore, that the statutory authorities are given the opportunity to decide the question which the statute requires them to decide. 16. The fact that the Central Government had on a prior occasion decided, as appears in this case to have happened, that fountain pens of the kind which the respondent had imported, were liable to duty under Item 61(8) cannot furnish any reason justifying the departure from the normal rule of the issue of a writ without that Government having been moved under Section 191. This prior decision of the Central Government could be a reason for such departure only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... performance of work of a quasi-judicial nature. The observation of Das J. in Province of Bombay v. K.S. Advani, 1950 SCR 621 at p. 725, which I am about to read, fully fits this case : "If a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authorities will yet be a quasi-judicial act provided the authority is required by the statute to act judicially." Now the Sea Customs Act empowers the Customs authorities to impose a certain duty on goods imported and this no doubt prejudicially affects the importer. The Act further clearly requires the authorities to proceed judicially in imposing that duty when a dispute arises, that is, after giving a hearing to the party affected : see Sections 29, 31 and 32 of the Act. In this case a hearing was in fact given to the respondent. This taken with the provisions as to a right of appeal from the decision of the first assessing officer and as to the right to move the government in revision from the decision in the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rives its justification from the fact that it assists in ascertaining the intention of the legislature. The reason why it so assists is this. When two provisions enacted by the legislature are inconsistent and one cannot operate at all if the other is given full effect, a question arises as to what the legislature intended. Clearly, it could not have intended that a provision that it enacted should have no operation at all. Therefore it is to be presumed that the legislature intended that both the provisions would at least have some effect, if they could not have their full effect. The rule under discussion gives effect to this presumed intention of the legislature. In order to give effect to this intention, the rule provides that the provision with a narrower scope of operation should have effect so far as it goes, in preference to the provision with the larger scope of operation so as to restrict the operation of the latter which, without such restriction, would have wiped the narrower provision out of the statute book altogether. This rule permits buth the provisions to have effect; it reduces the scope of one and prevents the other from becoming a dead letter. This aspect of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old-plated fountain pens were assessed under Item 61(8), there would still be plenty of scope left for Item 45(3) to operate upon, for, there would be many kinds of complete fountain pens without gold plating. Likewise also if gold-plated fountain pens were assessed under item 45(3), there might be many other gold-planted articles for being assessed under Item 61(8). Item 61(8) cannot be said to overrule Item 45(3) completely. Item 61(8) cannot said to be a general provision and Item 45(3) a specific one. There is no scope here of applying the rule giving effect to a specific enactment in preference to the general. 26. What then should be done? Under which item should gold-plated fountain pens then be assessed to duly? In my view, they were properly assessed under Item 61(8). The item is clearly intended to apply to all gold-plated articles other than the two expressly excepted, namely, cutlery and surgical instruments. There is no reason why this intention should not be given effect to. The Customs Tariff Schedule no doubt makes separate provisions for various individual articles. A fountain pen is one of such articles. If a gold-plated fountain pen is for the reason that fountai ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
