SECRETARY OF STATE Vs. MASK AND CO

JUDGEMENT

(1.) The sole question for determination in this appeal is as to the jurisdiction of the Civil Courts to entertain the suit. The appeal is taken from a judgment and order of the High Court of Judicature at Madras, dated 2nd February 1938, which set aside a decree of the Subordinate Judge at Cuddalore, dated 30 March 1937 (which had dismissed the respondents' suit on the ground of want of jurisdiction), and directed the Subordinate Judge to restore the suit to the file and to dispose of it on the merits. The respondents are a firm of merchants, haying their head office at Panruti in the Province of Madras, and, in the course of their business, they import betel-nuts from Java into British India. The facts in the present suit, which was filed by the respondents on 10 April 1934, are not materially in dispute. The suit relates to two consignments of betel-nuts, imported by the respondents in December 1932, from Java to Pondicherry by sea, and thereafter by rail to Panruti. These consignments, which originally consisted of 3927 bags in all, were re-packed at the Port of Pondicherry, owing to damage to the gunnies, into 4063 bags, before importation into British India. The consignment were imported into the Province of Madras by rail and carts from Pondicherry to Panruti by various instalments, the first of which consisted of 1000 bags imported through the Customs Station at Pondicherry on 31 December 1932. The remaining bags were imported in several instalments in the months of February, March a November, 1933, through the Customs Stations at Pondicherry and Madalapet.

(2.) It appears that prior to this occasion, the respondents had been in the habit of importing their betel-nuts at the port of Cuddalore in the Province of Madras, but, in the beginning of the year 1932, the Customs Collector at that port had assessed a similar consignment of 3605 bags as boiled betel-nuts subject to duty on a tariff value, contrary to the respondents' contention that they should be assessed as raw betel-nuts, subject to duty ad valorem. In the hope that they might achieve an assessment in accordance with their contention, the respondents altered their place of importation in the case of the consignments here in question, but their disappointment in that respect has given rise to the present suit, in which they seek to challenge the adverse decision in a civil suit. On the arrival of the consignments at Pondicherry, the respondents wrote on 27th December 1932, to the Collector of Customs, Madras, asking to be allowed to import the goods as raw sliced betel-nuts and not as boiled. As they anticipated an increase in the ad valorem duty to come into effect at the beginning of 1933, they requested a telegraphic reply, which they received on 29 December 1932, saying : If you desire import before January first you must import goods and deposit duty calculated on higher tariff value Inspector will at time of taking deposit and passing goods take sealed samples for test and will also deliver to you other sealed samples to enable you appeal if necessary. The respondents thereupon imported 1000 bags on 31 December 1932, and paid the higher duty under protest to the Assistant Inspector of Customs at Pondicherry Railway Chauki, samples being duly taken. After examination of the samples, the Assistant Collector of Customs, Madras, wrote to the respondents on 28 February 1933, as follows : I have to state that on examination of the samples from the consignment in question, it has been found that the betel-nuts imported are "boiled." The 1000 bags cleared on 31 December 1932, are therefore assessable at 37? per cent. on a tariff valuation of Rs. 23 per cwt. and the remaining bags, if cleared, will be liable to duty at 45 per cent. on a tariff value of Rs. 16 per cwt.

(3.) An appeal by the respondents against this decision was dismissed by the Collector of Customs on 20th June 1932. The matter was taken to the Government of India in revision, but by their order dated 13 August 1933, the Government of India confirmed the Collector's decision. The present suit was filed on 10 April 1934. In the suit the respondents seek to recover the excess amount collected from them by levying duty upon a tariff value of Rs. 23 per cwt. upon 1000 bags and of Rs. 16 per cwt. upon the remainder, viz., 3063 bags instead of levying duty upon the invoice value of Rs. 10-9-1 per cwt. In para. 14 of the plaint, they state that the cause of action arose on 18 August 1933, when their petition for revision to the Government of India was thrown out. Various issues were framed by the Subordinate Judge, but it was decided to determine in the first instance issue 3 : Has this Court no jurisdiction to entertain this suit and is the suit barred by the provisions of the Sea Customs Act ? By a judgment delivered on 30 March 1937, the Subordinate Judge held that the Court had no jurisdiction to entertain the suit and dismissed the suit. An appeal was allowed by the High Court on 2 February, 1938 and the Subordinate Judge was directed to proceed to dispose of the suit on the merits. This appeal is from that decision. While the imposition of the duties here in question is regulated by the Land Customs Act (Act 19 of 1924), the matter in issue arises under certain provisions of the Sea Customs Act (Act 8 of 1878) which are incorporated subject to the necessary verbal modifications by S. 9, Land Customs Act, and the schedule to the Act. The Secs.of the Sea Customs Act which are material are contained in Chap. 17 of the Act which is headed "Procedure relating to offences, appeals, etc." and which includes Ss. 169 to 193. The material Secs.are as follows : 182. In every case, except those mentioned in S. 167, Nos. 26, 72 and 74 to 76 both inclusive, in which under this Act anything is liable to confiscation or to increased rates of duty; or any person is liable to a penalty, such confiscation, increased rate of duty or penalty may be adjudged - (a) without limit by a Deputy Commissioner or Deputy Collector of Customs, or a Customs Collector; 186. The award of any confiscation, penalty or increased rate of duty under this Act by an Officer of Customs shall not prevent the infliction of any punishment to which the person affected thereby is liable under any other law. 188. Any person deeming himself aggrieved by any decision or order passed by an Officer of Customs under this Act may within three months from the date of such decision or order, appeal therefrom to the Chief Customs Authority, or in such cases as the Local Government directs to any Officer of Customs not inferior in rank to a Customs-Collector and empowered in that behalf by name or in virtue of his office by the Local Government. Such authority or officer may thereupon make such further enquiry and pass such order as he thinks fit, confirming, altering or annulling the decision or order appealed against : Provided that no such order in appeal shall have the effect of subjecting any person to any greater confiscation, penalty or rate of duty than has been adjudged against him in the original decision or order. Every order passed in appeal under this Section shall, subject to the power of revision conferred by Section 191 be final. 189. Where the decision or order appealed against relates to any duty or penalty leviable in respect of any goods, the owner of such goods, if desirous of appealing against such decision or order shall, pending the appeal, deposit in the hands of the Customs-Collector at the port where the dispute arises the amount demanded by the officer passing such decision or order.