MARWARI MILLS STORES CO Vs. A K BANDOPADHYAY

JUDGEMENT

(1.) The facts in this case are shortly as follows: The petitioner firm carries on business in the importation of diverse Mill Stores and Accessories, On or about the 19th December, 1958 and 31st December, 1958 respectively the petitioner was granted two Import Licences by the Joint Chief Controller of Exports and Imports Calcutta. By the said licences, the petitioner was authorised to import spare parts of jute mill machinery as per lists attached thereto. under Sl. No. 37 (2) of Part II of the Import Trade (Control) Schedule, valid from October, 1958 to March, 1959. The petitioner was thereby authorised to import spares, components and parts of jute mill machinery falling under Sl. No. 37 (2) but excluding components for machinery included in Appendix XXXV of the said schedule, and Sl. 68 in part V. In September. 1960 the petitioner imported certain Cork Covers for jute mill machinery ex. S. S. Alwaki, from Germany. According to the petitioner, the goods imported were covered by the licences, as they were intended for Roll Former Machines, used in Jute Mills, and as such came under the heading of component parts of jute mill machinery. The Roll Former Machines were not excluded by the Schedules, not coming within any item mentioned in Appendix XXXV of the said Schedule or Sl. No, 68 in Part V. On the 5th September, 1960 the petitioner received a notice from the Assistant Collector of Customs for Appraisement, Calcutta, a copy whereof is Exhibit "C" to the petition. It was stated in the notice that on examination of the documents relating to Cork Covers for Jute Mill Machinery imported by the petitioner ex. S. S. '"Alwaki", from Germany, it was found that the goods could be used in machines banned under Appendix 35, Thus, they were not covered by any Import Licence and the importation was in contravention of the law. The petitioner was called upon to show cause why the goods should not be confiscated and action takcn against them under Section 167(8) of the Sea Customs Act, read with Section 3(2) of the Import and Export (Control) Act. The petitioner thereupon showed cause. On the 26th September, the Collector of Customs for Appraisement made an order, a copy whereof is Exhibit "E" to the petition. It was held that the cork covers which were imported were for the purpose of being used in the banned type of machineries, as by slight cutting or adjustment they could be used in the banned type of machines. The goods were accordingly confiscated under Section 167(8) of the Sea Customs Act, but the petitioner was given an option under Section 183 of the Sea Customs Act to clear the same on payment of a fine of Rs. 18,520/-. Against the said order, the petitioner has actually preferred an appeal before the Central Board of Revenue under the Sea Customs Act, but that appeal is still pending. Nevertheless, this application has been made for the issue of a writ in the nature of certiorari quashing the said order and also for a writ in the nature of mandamus directing the respondents not to give effect to the same. As appears from the affidavit in opposition affirmed by Sudhir Chandra Ghosh, on the 8th March, 1961 these cork covers were imported, as being required to be used in machines called Roll Formers. It is further stated that they were imported so that with slight modifications they could be used as roller covers for push bar drawing frames and spiral roving frames, being Jute Mill Machineries banned under Appendix XXXV and were being actually used as such. It is alleged that if this kind of thing is permitted, then the whole prohibition or ban under Appendix 35 would be defeated. I find also as mentioned in the order dated 18th October, 1960 that there was a personal hearing and the stand taken by the petitioner was that the Customs Department should go by the goods as they were imported and not by their subsequent use in any other form. I do not see how it is possible for me to decide this disputed question of fact namely as to whether these goods were really meant for the purposes for which they were imported, or as a cloak for avoiding the ban. However, what is said is that the Customs Authorities have acted without any evidence and it now appears from the affidavit that they had made enquiries from the mills which enquiries were not done in the presence of the petitioner. Mr. Kar has taken a preliminary objection in this case, namely that there is an alternative remedy by way of an appeal to the Central Board of Revenue, and in fact the petitioner has filed an appeal which is still pending. Therefore, this application does not lie and is misconceived. Mr. Ginwalla admits that an appeal has been filed and it is still pending. His client intends to proceed with the appeal. Nevertheless, he argues that this application is competent. He says that in the appeal preferred, his client has taken certain point, namely corruption on behalf of the staff, which matter could not be decided by this Court, and further, if his client did not prefer the appeal it would have bean barred by limitation by the time this application came to be heard and disposed of, In my opinion, none of these grounds are adequate, and the preliminary objection should be made between two propositions. Normally, an application for a writ in the nature of mandamus will not lie if there is an alternative remedy which grants adequate relief. In the case of a writ of certiorari or prohibition, the exisence of an alternative remedy is by itself no bar to an application in this jurisdiction, provided certain factors exist e.g. an initial "lack of jurisdiction, violation of the rules of natural justice, etc. But the Court is not bound to entertain such an application. In neither case is the Court's jurisdiction to entertain, an application ousted by the existence of an alternative remedy, and in a suitable case such an application may be entertained. For example, where there are facts which obtrude themselves into the view of the Court, requiring relief, the Court will not refuse to entertain the application. In State of Uttar Pradesh v. Md. Noon, AIR 1958 SC 86, Das C. J., said as follows:

(2.) But what happens in a case where an appeal lies and such an appeal has been filed and the appellant is proceeding with the appeal and at the same time has preferred an application in this jurisdiction? In my opinion, the law applicable to such cases has now been firmly established. The first case to be cited is a Full Bench decision of this Court, to which I was also a party Abanindra Kumar Maity v. A. K. Majumdar. In that case Chakravartti C. J., said as follows:

(3.) I now come to a Supreme Court decision K. S. Rashid and Sons v. Income-tax Investigation Commission. In this case Mahajan C. J. said as follows: