K GANGA SETTY Vs. COLLECTOR OF CUSTOMS MADRAS

JUDGEMENT

(1.) THIS is an appeal from the judgment of Subba Rao J. on an application (4680 of 1952) filed by. the appellant under Section 45, Specific Relief Act, for the issue of a mandamus directing the Collector of Customs, Madras, to forbear from collecting or realising or taking any other steps whatever to recover the fines or penalties levied by the Assistant Collector of Customs by his order' dated 23-9-1952, confirmed, by the Collector of Customs on appeal, on 8-10-1952, in the following circumstances. The appellant is the proprietor of a firm called Sri Balakrishna Flour Mills. He is a dealer in fodder and as such a regular importer of fodder from foreign countries. He placed an order through one V. S. L. Nathan, Indenting Agents, for the Import of "feed oats" from Australia. The goods arrived in Madras on 1-8-1952 and when the appellant attempted to clear the goods, the customs authorities insisted on the production of a licence to enable him to clear the goods. As the appellant was unable to do so, on 23-9-1952, the Assistant Collector confiscated the goods under Section 167 (8), Sea Customs Act and imposed a fine of Rs. 5000 in lieu of confiscation for clearance into town or a fine of Rs. 500 for reshipment to the country of origin, on the ground that the offence Of violation of section 19. Sea Customs Act read, with Section 3 (2), imports and Exports (Control) Act, 1947, had been committed. The appellant appealed to the Collector of Customs. But the appeal was rejected. It was thereafter that the appellant filed the application under Section 45, Specific relief Act out of which this appeal arises. Subba Rao J. dismissed the application.

(2.) THE only question which arises in this case is whether it was necessary for the appellant to obtain a licence for the import of the goods nto this country. During the material period, imports were being regulated by the Government under rules and notifications made and Issued under the Defence of India Act. It is common ground that if the goods imported by the appellant fell within Entry no. 42 in Part IV of the Import Trade Control Schedule, corresponding to item 12 (5) of the Indian Customs Tariff namely "fodder, bran and pollards", no special licence was necessary for the import of the goods. But, on the other hand, if the goods fell within entry No. 32 of Part 4 of the same schedule, corresponding' to item 10 of the Indian Customs Tariff, namely "grains", then a special licence was necessary.

(3.) THE documents filed in the case certainly disclose divergence of opinion between the different concerned authorities on the question whether cats, crushed or uncrushed, tell within the category of fodder or grains. We have on record a letter dated 14-9-1951 from the Deputy Chief Controller of Imports, Madras, addressed to the appellant in which it is assumed that Feed Oats are classifiable under serial No. 42 and, therefore, covered by Open General Licence No. XXIII. We may mention that this was in reply to a query from the appellant whether the appellant had to obtain a licence to import Feed Oats from Australia. A different view, however, was taken subsequently, a view expressed in a letter dated 8-11952 alleged to have been addressed by the Deputy Chief Controller of Imports to the appellant, the receipt of which is not admitted by the appellant. This letter runs thus;