TMI Blog1961 (9) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... nt was booked by s.s. Noreverett and the freight was insured with the National Insurance Co. Ltd. The firm's Clearing Agents were instructed to prepare the Bill of Entry and to submit the same to the Customs in time to avoid demurrage. The shipping documents were received from the Bank concerned and the Clearing Agents paid on the firm's behalf Customs duty on the said 80 bags of betelnuts amounting to Rs. 18,296/25 nP. The payment was made on June 4, 1957. On the next day, the consignment was attempted to be cleared from the Port Commissioner's shed, but a part of it could not be traced. Only 26 bags were taken delivery of and the balance of 54 bags remained untraced. Eventually, the Port Commissioners issued a short-landing certificate in the prescribed form. On the strength of this certificate, an application was made by the respondent firm for refund of proportionate Customs duty. Upon hearing the firm's representative, the Customs authorities issued a refund order on the 7th January, 1958 which entitled the respondent firm to receive back a sum of Rs. 12,855/-. This order was encashed in due course and taken credit of by the firm on the 13th January 1958. 3.On the 15th of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... priate orders quashing the proceedings commensed against them. Accordingly, the respondent firm applied to this Court under Article 226 of the Constitution. 7.Rule Nisi was issued by Sinha J. on December 12, 1958, requiring the Customs authorities to show cause why they should not cancel or withdraw their notice dated the 15th day of September 1958 and the subsequent notices and forbear from giving effect to them. After hearing the parties, Sinha J. made the Rule absolute and issued a writ in the nature of certiorari quashing the letter or notice in question and all proceedings based upon it and another was in the nature of mandamus directing the Customs authorities not to give effect to the notice. Being dissatisfied with the decision of the learned Trial Judge the appellants have preferred this appeal. The main contention before us has been that the learned Trial Judge misconstrued Sections 39 and 190A of the Sea Customs Act. It is said that the misreading of these two sections has resulted in an erroneous decision and caused failure of justice. 8.In order to be able to appreciate this contention, it would be necessary to notice the two sections. Section 39 is in these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer of Customs subordinate to him. (3) No decision or order passed by an officer of Customs shall be revised under this section by the Chief Customs authority or a Chief Customs Officer, as the case may be, after the expiry of two years from the date of the decision or order." It is to be observed that Section 39 occurs in Chapter V which deals with the levy of and exemption from Customs duties. It is one of a group of sections which speak of dutiable goods, of the power to exempt from Customs duties, of the obligation of the owner to declare the real value of the goods in the Bill of Entry, of shipping bills, of assessment of duty and of various other matters in connection with the levy of Customs duties. Section 190A occurs in Chapter XVII which prescribes the procedure relating to offences and appeals. It is one of a number of sections which regulate proceedings in connection with offences, appeals etc. under the Sea Customs Act. The power of holding search on suspicion, power to screen or X'ray bodies of persons in order to detect secreted goods, power of the officers of Customs to summon persons to give evidence and produce documents, power to issue search warra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed a limit of time within which a notice of demand has to be issued, a proceeding commenced under Section 190A is not controlled by what is provided for in Section 39. The last named section has its own period of limitation which regulates a proceeding taken under it but the present proceeding being on under Section 190A is not governed by Section 39. 10.The learned Trial Judge rejected the contention on behalf of the Customs authorities and held that Section 190A is procedural section and it could not be said that it is independent of Section 39. He observed that "the bar of limitation under Section 39 must be applied to the facts of this case and the Additional Collector of Customs did not act in accordance with law in an attempt to reopen the matter under Section 190A of the Sea Customs Act." We find ourselves in complete agreement with the view taken of the matter by the learned Judge. 11.It seems plain that Section 190A would be nearly void of content if the substantive provisions in the Act were to be read completely divorced from it. In our opinion, Section 190A is entirely procedural. It gives wide powers to the Chief Customs authority to call for and examine the recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the respondents' case clearly falls. According to the appellants a sum of money had been erroneously refunded to them. In order that the amount thus erroneously paid might be recovered a notice of demand has to issue in terms of Section 39 of the Sea Customs Act. In our view it is idle to contend that since Section 190A prescribes a period of two years within which the revisional powers of the Chief Customs authority may be exercised, that has the effect of destroying the provision of Section 39 which is a clear and specific provision in the same Statute. 14.It seems clear that when customs duty, after having been levied, has been erroneously refunded owing to one or other of the causes mentioned in Section 39, the person to whom such refund has been erroneously made shall repay the amount on a notice of demand being issued to him within three months from the date of refund. Similarly, by Section 40, the Act provides that Customs duty which has been erroneously paid for similar causes will be refunded only if the claim for refund is made within three months from the date of such payment. The point to note is that the claim for levy of duty by the Customs authorities or cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e an instance of such abuse. The section cannot be read so as to destroy or defeat the earlier express provision contained in Section 30 of the Act. 15.The rule is well-known that where a general intention is expressed and the Act expresses also a particular intention, incompatible with the general intention, the particular intention is to be considered in the nature of an exception. The Supreme Court endorsed this view in the case of the State of Bombay and Anr. v. The United Motors (India) Ltd., and Ors., 1953 S.C.A. 408. In our opinion, the specific provision relating to limitation contained in Section 39 cannot possibly be destroyed or overridden by the provision in Section 190A whereby the Chief Customs authority has been given power to revise order previously made within a period of two years. There can, in our view, be no question that the period of limitation prescribed in Section 39 must prevail. In our opinion, the present case is completely covered by Section 39 of the Sea Customs Act which is a specific provision. According to the notices issued by the Customs authorities, a part of the duty was erroneously refunded. Consequently, if action was to be taken, it was r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Judge was however, careful to point out that in that case no question of jurisdiction have been raised. If the Customs authorities had jurisdiction to issue the notice requiring the person concerned to show cause against the propose confiscation of the fluorescent tubes and accessories, then surely any application under Article 226 at that stage would be premature. By the learned Judge observed that if the objection to the proceedings have been founded upon want of jurisdiction, the position might have been different. In the present case, that is, precisely the point. We have noticed that the first thing that the respondents did in regard to the notice dated the 15th September, 1958, was to object to the proceedings on the ground that the appellants had no ground that the appellant had no jurisdiction to taken them. Where, therefore, there is that initial want of jurisdiction to commence a proceeding there can, in our view, be no reason whatever why the person proceeded against, should be prevented from seeking the assistance of the Court under Article 226 of the Constitution for the purpose of preventing harassment to himself. There can be no question that the issue of notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tain specified circumstances can be recovered. The Customs authorities' case is that the refund had been made erroneously to the respondents. (See the letter dated the 15th September 1958). So the contingency or case is one which falls under Section 39. This being the position, can it be said that although no notice of demand was issued within three months of the date of refund and the claim or repayment has become irrecoverable, yet by the indirect process of revision or review as envisaged in Section 190A of the Sea Customs Act the order of refund can be revoked and the respondents made liable to repay the amount refunded. To give countenance to such interpretation, will be to make the provisions of Section 39 nugatory. The result of such construction will be that in every case of short levy or escapement of levy or of erroneous refund, the provisions of Section 190A may be availed of, provided it is so availed of within a period of two years as provided in Section 190A and bar of limitation as specified in Section 39 can be got rid of or circumvented in this manner. Such an absurd intention cannot be imputed to the legislature. In my view, Section 190A has not the effect of over ..... 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