BOMBAY BUSINESS HOUSE Vs. S. VENKATESAN

JUDGEMENT

(1.) THIS is an appeal from a judgment of Mr. Justice Section T. Desai by which he dismissed a petition filed challenging an order passed by the Deputy Collector of Customs confiscating certain goods imported by the petitioners as having been imported contrary to law and, therefore, liable to be confiscated. The narrow question that we have to consider in this appeal is whether the decision of the Customs Authority that the goods imported by the petitioners did not fall within the ambit of the import license issued to them is a decision which can be challenged by a petition, and if it can be challenged, whether a successful challenge has been made.

(2.) NOW , the facts briefly are that the import license was issued to the petitioners on July 18, 1955, and the license was for importing motor vehicle parts, and the description of these parts allowed to be imported had to be gathered from the serial numbers mentioned in the Import Trade Control Policy Book, the serial numbers being 293, 295 and 297 of Part IV. The license also indicated the limit of Rs. 90,666 within which the goods permitted to be imported had to be imported and the license also stated that the license will be subject to the conditions in force relating to the goods covered by the license, as described in the relevant Import Trade Control Policy Book, or any amendment thereof made upto and including the date of issue of the license, unless otherwise specified. Pursuant to this license the petitioners indented from a Japanese firm certain bearings which were described in the indent as motor vehicle water pump bearings, and a letter of credit also was opened through the Mercantile Bank of India and in the intimation given to the manager the goods in respect of which the letter of credit was opened were also described as motor vehicle water pump bearings. The appellants received a consignment of 6,200 pieces out of the goods indented and these goods were cleared by the Customs Authorities. A further consignment of 26,800 pieces arrived on January 15, 1956. The petitioners filled in the necessary bill of entry. But the view taken by the Assistant Collector of Customs, which view was communicated to the appellants, was that these goods had been imported in contravention of the Import Trade Control Regulations inasmuch as the goods exceeded the available quota of 75 per cent, of the unutilized value of the import license. After that there was some correspondence between the petitioners and the Customs Authorities, with which we are not concerned, and ultimately the impugned order was passed on March 27, 1956. The basis of the order was that the bearings imported by the petitioners were not water pump bearings and therefore they did not fall within the ambit of the import license. It is this order which is being challenged.

(3.) NOW , it is unfortunate -and we say this with great respect to the learned Judge -that he was persuaded to allow evidence to be taken on the question whether these particular articles fell within the ambit of the license or not, or, to use a different expression and to sum up what the learned Judge was doing, whether these parts which were imported by the appellants were water pump bearings, and haying heard the evidence the learned Judge came to the conclusion that the decision of the Customs Authority was right. In our opinion, the learned Judge should not have permitted any evidence to be led. No one suggests that it is not permissible to a Judge on a writ to admit evidence in certain cases, but looking to the nature of the writ sought by the petitioners in this case the adducing of evidence by either party, in our opinion, was entirely out of place. It was not open to the petitioners, in order to obtain a writ either of certiorari or mandamus, to challenge the basis of fact on which the order was passed, and we have, therefore, not permitted Mr. Mistree to go into the evidence led before the learned Judge. How impossible the situation becomes, when evidence is permitted on a writ application which should not be permitted, is made clear from the fact that this appeal is largely an appeal challenging the finding of fact by the learned Judge. So we have a finding of fact by the Deputy Collector, we have an appeal on that to the learned Judge below who finds his own facts, and now Mr. Mistree solemnly wants us to sit in judgment on that finding and arrive at our own findings. Mr. Mistree says that he wants to reserve his right to go to a higher Court, if he is permitted to go to a higherCourt, and to argue the point that he was not permitted to go into the evidence. Yes, Mr. Mistree is quite right. Rightly or wrongly we have taken the view that evidence should not have heen permitted on the petition filed by the appellants challenging the order of the Deputy Collector.