TMI Blog1955 (7) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... Tariff Act at 30 per cent ad valorem duty, and the duty that has been sought to be imposed upon this consignment is 78¾ per cent under item 61(8) which refers to "articles plated with gold or silver", the question for determination is whether this consignment fell within item 45(3) or within item 61(8). 3.Before dealing with the question of interpretation, I must deal with two preliminary objections raised on behalf of the respondent by Mr Seervai. His first objection is that the Petitioner has another adequate and specific legal remedy in that an appeal lies to the Government under section 191 of the Sea Customs Act. Now, if what the petitioner contends is true, viz., that obviously item 45(3) applies to this consignment; the order of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at "fountain pens complete" include fountain pens which may have plated parts of silver or gold as well as fountain pens which did not have any such parts, so long as they are "fountain pens complete". When you next turn to item 61(8), the item is "Articles, other than cutlery and surgical instruments, plated with gold or silver". Now, there is an infinite variety of articles which may be plated wholly or in part either with silver or gold, and it cannot be that if any of such articles were to be subjected to duty under item 61(8) and not under the specific item applicable to such article. "Fountain pens complete" is a specific article while plated articles are a class of articles which comprises within its scope articles far too numerous t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty under another item in the Schedule. An extreme case of that kind does not help one to interpret the items in the Schedule; but if we did have a case of an attempt to smuggle diamonds in the shape of a fountain pen, I have no doubt that obviously such a "fountain pen" would not satisfy the description of a "fountain pen complete" because the real value of it would not lie in its use as a fountain pen but in the diamonds with which it was studded. It is not suggested in the affidavits that the real value of a gold fountain pen lies in the gold cap. I suppose a fountain pen writes as well with or without a gold cap, and so long as the article that is imported is valued for its use as a fountain pen and not for any superficial and extra-ordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasonably possible for any person to take a contrary view. This, in my opinion, is not a case of competent authority having come to one of two possible conclusions. This is a case of a competent authority having usurped jurisdiction by wrongly interpreting an item which is not capable of such an interpretation. 9.In my opinion, therefore, the consignment can only be subjected to duty at 30 per cent ad valorem under item 45(3) and therefore a mandamus shall issue restraining the respondent from enforcing payment of any duty higher than 30 per cent and directing him to release the goods in so far as they have been detained for payment of duty upon payment of 30 per cent duty. Respondent to pay the petitioner's costs fixed at Rs. 250. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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