WAN TEN LANG Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) This is an application under Section 45, Specific Relief Act for an order upon the Customs Authorities to proceed under Section 32, Sea Customs Act. The questions are three, (1) whether the Court has any jurisdiction at all, a point of demurrer, (2) whether on a proper construction of the Act,, the Customs Authorities are refusing to perform a statutory duty; in other words, what if anything have the Customs Authorities done wrong? (3) Whether assuming jurisdiction, relief under Section 45, should be granted. The particular facts are as follows: The goods in question arrived on 17 February 1939. On the previous day, OB 16 February 1939 we find a bill of entry which is annexed to the affidavit in support of this application. It shows that the-consignment consisted of a number of miscellaneous goods. The amount or real value appears in the appropriate column inserted by the importer or his agent. At the bottom of the bill of entry is a printed note Clause 3 of which is material. It reads-as follows: It is hereby declared that the acceptance of the-deposit of duty calculated on the declared value and description of the goods specified in this bill of entry before examination and assessment shall not be deemed to imply acceptance by Government of such declared value or description or to affect the rights of Government under Secs.31 and 32, Sea Customs Act, until the Appraising Department shall have finally accepted such declared value and description.

(2.) The consignment, I have mentioned, consists of articles as different as felt caps, silk haberdashery, hardware, saddlery, pipes, and wooden beams. On 21 February 1939, under existing practice, the duty according to the declared value was deposited in advance. On 22nd February 1939 the Customs Authorities had the goods, opened and they found amongst them not declared 116 packets of cotton cord. They also found that what were described in the invoice I believe as silk tassels and in the bill of entry as silk haberdashery were in fact silk scarves. The latter appears to be a most momentous fact as it makes a difference in duty of the sum of Rs. 5. The 116 packets of cotton cord of course requires explanation. The Customs Authorities justifiably regarded it as an attempt to smuggle; On 8 March 1939 the Customs Authorities gave notice to show cause why the goods should not be forfeited. This is is accordance with the law under Section 167, item 37. On 21 March, the goods being detained in the meantime, the goods under an order which is endorsed on the bill of entry were re- assessed for duty by the addition of 50 per cent, on each item of the value declared and a penalty was imposed of Rs. 5. The letter to the importer states that "the duty short levied must be paid" (the phrase should be noted). On 1 April there is a final order of the Assistant Collector of Customs. It refers to the penalty. It also refers to the "payment of correct duty assessed under Section 87, Sea Customs Act," which is the first reference to assessment under that Section or to any assessment at all. This application was made on 28 April 1939. There is no letter actually calling upon the Customs Authorities to proceed under any particular Section but in the letter of 15 March 1939, para. 4, the applicant asks that "action under Section 167 may not be taken and that he may be allowed to pay the sums found deficit."

(3.) There is in this case, as in all cases of this nature, an important point of demurrer but as so often happens, that point of demurrer will depend to a great degree on the facts, namely the question, what if anything have the Customs Authorities done wrong? We have first to find whether they have failed to carry out or are refusing to carry out a statutory duty and secondly, we have by reason of the particular Section of the Government of India Act, to decide whether what they are doing or the matter in which the Court is asked to exercise jurisdiction does or does not "concern revenue." I now proceed to deal with the construction of the Act and what the Customs Authorities have done. It seems to me clear that if the only course open to the customs under the statute is to proceed under Section 32 they are wrong and they are refusing to proceed according to their statutory obligations. When the matter was first presented to me, I thought that the Customs were proceeding or purporting to proceed wholly criminally, that is to say under Section 167, and had made some kind of anomalous order purporting to be made under the power to impose a penalty, but that is not so. Although this is clearly a penal assessment the main contention of the customs before me is not that it is irregular or an anomalous order under Section 167 but that they are entitled to assess, levy and detain irrespective of Section 32 and in particular under Section 87.