CHIMANLAL DESAI Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner is an importer of goods including motor cycle parts. In pursuance of a licence which was issued to him in that behalf, he has imported certain goods from Japan described as "Sirens" which, according to the petitioner are pre-elemently fitted for being used in motor cycles and motor scooters and adapted for that purpose. The question that arisen is whether the customs duty payable thereon is under item 295 or item 301 of the Tariff Schedule. This very matter came up before me once before and the decision Chimanlal V/s. Union of India, 1956 AIR(Cal) 542. The two items read as follows :-

(2.) According to the petitioner the matter comes under item 295 but according to the Customs authorities, it comes under item 301, in which case the customs duty chargeable is slightly higher. This point having been agitated. I pointed out in my judgment mentioned above, that the proper way of looking at it would be to apply certain tests which I have mentioned there. The matter thereupon went back and the authorities have again held that the duty is chargeable under item 301. The relevant part of the finding is as follows :-

(3.) This was followed by an order of confiscation of the goods. In my opinion the tests have again not been applied correctly. The finding is such as does not assist the determination of the point as to whether the matter comes under item 295 or item 301. The finding is that the sirens are essentially adapted for use on Cycles. That would take it under item 301. In order to find out whether it is excluded from item 301, but included in item 295 it will have to be found out as to whether being a part or accessory of a cycle it has been adapted for use as part or accessory of a motor cycle or a motor scooter. Without this finding, the matter could not be determined at all. A thing which is adapted to be used in a motor cycle is prima facie not a part or accessory of a motor cycle but a part or accessory which has been adapted for use with a motor cycle or a scooter and it may well be a part or accessory of a cycle. It is after this test has been applied, that further investigations may be necessary to find out whether even if it is adapted as part of a motor cycle, it can be said to continue to be a part or accessory of a cycle and normally used as such the only finding however is that this is a part adapted for use in cycles but its use in a motor cycle or scooter was 'neither normal nor common'. A cycle part may be adapted for use in a motor cycle but it may be a cumbersome adaptation so that it is normally or commonly not used. Such a findings therefore cannot lead to the determination of the questions to whether it comes within one item or the other. Apart from the faulty determination of the question it appears that exhaustive enquiries were made but unfortunately all these enquires were ex parte and without notice to the petitioner and behind his back. It has now been held that these proceedings are quasi-judicial proceedings and therefore enquiries upon the results of which the Customs authorities rely, cannot be made behind the back of the person concerned. For both these reasons this order of the Assistant Collector of Customs dated October 16, 1956, being Ext. F to the petition, cannot be sustained and the rule is made absolute and a writ in the nature of certiorari is issued quashing this order and a writ in the nature of mandamus is issued directing the respondent not to give effect to it. The matter must now be determined in accordance with law. It is desirable that the matter should be expedited.