TMI Blog1969 (11) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Thereafter, the petitioner preferred revision petitions to the Government of India, and the Government of India informed the petitioner that they have carefully considered the revision application but saw no reason to interfere with the order in appeal passed by the Appellate Collector of Customs, Madras. It is under these circumstances that the three writ petitions in respect of the three consignments have been filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorari to quash the orders referred to above. 2.The only point in controversy is whether the goods imported by the petitioner fall within Item 63(9) or not. It is the common case of the parties that if they do not fall under Item 63(9) then it is assessable to duty only under Item 63(28). Hence, the very narrow question that arise for consideration is whether the goods imported by the petitioner fall within the scope of Item 63(9) or not. For this purpose, it is necessary to refer Item 63(9) as well as Item 63(28). Item 63(9) is as follows :- "Iron or Steel structures, fabricated partially or wholly not other wise specified if made mainly or wholly of iron or steel bars, secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e monolith at the other end by means of nuts and turn buckles. The area between the monolith and anchor wall is filled with rubble and sand to enable the anchor wall to develop resistance. The anchor walls develope resistance and the tie backs the monolith curb from sliding and tilting. (4) Each tie back is made up of four lengths of tie rods inter-connected by turn buckles with nuts, washers and anchor plates at either end making a total length of 140 feet. The tie rods themselves are manufactured out of 3" diameter steel rounds. The ends are heated and forged by hammer to 3¾" diameter and threaded to suit the nuts and turn buckles as per specifications to suit the particular requirement of the Trust for the construction of the Jawahar Dock." 4.These paragraphs do not help to decide whether the imported materials are iron or steel structures or not. They merely elaborate the purpose for which the goods were imported and the use to which they were intended to be put. On the other hand, the nature and the character of the goods are to be found in the impugned orders. The Assistant Collector of Customs, Appraising Department, Madras, when he declined to grant the refund of duty a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in its ordinary sense. As used in its ordinary sense, I suppose it means something which is constructed in the way of being built up as is a building; it is in the nature of a building." No doubt, the learned Judge in that case was considering the meaning of the expression 'structure' appearing in a provision which had stated thus :— "The following parts of a plant or combination of plant and machinery whenever and only to such extent as any such part is or is in the nature of a building or structure....... ." Still, the expression by the learned Judge as to the ordinary sense in which the expression 'structure' is understood still holds goods independent of the context in which that expression occurred in the relevant provision which the Court was considering in that case. If this test is to be applied, I am of the view that tie rods in this case cannot be called 'structure' at all. 6.Mr. V. V. Raghavan, learned counsel for the petitioner, laid very great stress on two decisions, one of the Calcutta High Court with regard to the identical item in the tariff and the other of Court of King's Bench Division. As far as the decision of the Calcutta High Court is concerned, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t come within the scope of Item 63(9). Hence, I am of the view that conclusion of the authorities below that the imported materials do not fall within the scope of Item 63(9) is correct. If so, there is no dispute about the fact that the articles ought to be taxed only under Item 63(28). 10.Learned Counsel for the respondents contended that the determination of the question whether an imported article falls within one item or the other is exclusively within the jurisdiction of the Customs authorities, this Court under Article 226 of the Constitution of India cannot interfere with that conclusion. Stated in such broad terms, the contention cannot be sustained. However, it is settled by a number of decisions of the Supreme Court that the jurisdiction of this Court under Article 226 of the Constitution to interfere with the determination of such a question by the Customs authorities is a very limited one. The Supreme Court had occasion to consider this question in A.V. Venkateswaran v. R. S. Madhwani [1983 (13) E.L.T. 1327 (S.C.) = AIR 1961 S.C. 1506]. In that particular case, the Bombay High Court had interferred with the order of the Customs authorities and against that, an appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the Supreme Court with regard to this is Girdharilal v. Union of India. (A.I.R. 1964 S.C. 1519). In that case the Supreme Court pointed out thus :- "This apart, from we must emphasise that a Court dealing with a petition under Article 226 is not sitting in appeal over the decision of the Customs authorities therefore the correctness of the conclusion reached by these authorities on the appreciation of the several item in the Hand Book or in the Indian Tariff Act which is referred to in these item, is not a matter which falls within the writ jurisdiction of the High Court." On the basis of those enunciation of principles Governing the jurisdiction of this Court under Article 226 of the Constitution of India to interfere with a determination of the Customs Authorities, can it be said that the conclusion of the Customs Authorities in the present case that these solid iron rods with a head at one end and threaded at the other end did not constitute "iron or steel structures" is a perverse or mala fide one? Even assuming that there can be reasonable doubt about the tie rods in question falling within that item still by no stretch of imagination it can be characterised that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d there is a further observation that there is a possibility of its also being used as a wearing apparel, and such a possibility could not be ruled out altogether. It was in these altered circumstances that it was assessed under Item 48(c)." It is with reference to these facts the learned Judge observed as follows— "Therefore I held that this is not a case where the Customs Authority had to make an election between two possible alternative classification one under one item of the Indian Customs Tariff Guide and the other under another item of the same guide which was more favourable to the revenue. In that event, following the dicta in several decisions of the Supreme Court including A.V. Venkateswaran v. R. S. Madhwani (1962 1 S.C.R. 753) followed in Collector of Customs v. Ganga Setty [1963 (2) S.C.R. 277], the decision of the Customs Authority would not be open to interference by this Court in Writ proceedings under Article 226 of the Constitution. On the other hand, this appears to be a case where the Customs Authorities when faced with every probability and every justification for classifying this item under Item 72(3) of the Schedule, decided to classify it under Item 48 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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