Appeal No 388 of 1956
Appeal by special leave from the judgment and order dated the August 19 1955 of the Bombay High Court in Appeal No 53 of 1955
755 C K Dhaphtary Solicitor General of India K B Choudhuri and B H Dhebar for the appellant
N section Bindra and R section Narula for respondent No 1
B H Dhebar for respondent No 2 1961
April 4
The Judgment of P B Gajendragadkar IC
R Wanchoo K C Das Gupta and N Rajagopala Ayyangar JJ was delivered by Ayyangar J A K Sarkar J delivered a separate judgment
AYYANGAR J
This appeal by special leave is against the judgment and order of a Division Bench of the Bombay High Court by which a writ of mandamus or certiorari granted to the respondent was confirmed on appeal preferred by the appellant now before us
A few facts are necessary to be stated to understand the matters in controversy and the points raised for our decision
The respondent carries on business in Bombay and he was granted on August 18 1954 a licence under the Imports and Exports Control Act 1947 for the import of fountain pens at not less than Rs 25 CIF value each from soft currency area up to a defined amount
He placed an order for the import of Sheaffer pens from Australia and a consignment of these was received by air in Bombay in Octo ber 1954
The fountain pens thus imported had nibs which were gold plated and also caps and clips of similar composition
The question in controversy relates to the rate of duty to be charged on these im ported pens
The Schedule to the Indian Tariff Act 1934 has an item numbered 453 in relations to the article described as fountain pens complete the rate of duty being 30 per cent and valorem
It was the case of the respondent that the imported goods fell within this item and were liable to be charged with duty at that rate 
The Custom authorities however considered that the consignment fell within the description articles plated with gold or silver being item 618 on which duty was payable at 781 per cent
756 The Assistant Collector of Customs adjudicated the duty on this latter basis and thereafter the respondent having filed an appeal to the Collector of Customs the levy was upheld by order dated February 22 1955
Section 191 of the enables any person aggrieved by an order of the Collector of Customs to file a revision to the Central Government
The respondent without resorting to this remedy filed a writ application in the High Court of Bombay to quash the imposition of the duty at the higher rate certiorari and to direct the release of the goods on payment of duty at 30 per cent
mandamus
The application was resisted by the Collector of Customs who raised substantially two points 1 that on the merits the goods imported were gold plated articles notwithstanding their being fountain pens and that the proper rate of duty was that which had been determined by the Assistant Customs Collector 2 that the respondent had another remedy open to him viz to file a revision to the Central Government and that he was therefore disentitled to move the High Court under article
226 of the Constitution before availing himself of the remedy specially provided by statute
The writ petition came on for hearing before justice Tendolkar who by his order dated July 5 1955 recorded that on any reasonable construction of the items in the Schedule to the Indian Customs Tariff fountain pens did not cease to be fountain pens because they contained parts which were plated with silver or gold and that so long as they were fountain pens complete subject to any exceptional cases of which this was not one only duty at 30 per cent
under item 453 could be levied
The learned Judge further held that the interpretation that he placed upon item 453 in the context of the other entries in the Tariff Schedule can only be one and it is not reasonably possible for any person to take a contrary view
In other words the learned Judge was of the opinion that the construction put upon the entry by the Customs authorities was unreasonable or perverse
757 The objection to the writ petition based upon the petitioner before him not having exhausted the statutory remedies available to him was repelled by the learned Judge on the ground that on the facts the decision to levy duty at 783 per cent
was without jurisdiction
The petition was therefore allowed and the Customs authorities were by order of Court restrained from enforcing payment of any duty higher than 30 percent
The Collector of Customs filed an appeal against this order which was disposed of by a judgment delivered on behalf of the Bench by Chagla C J
The learned Chief Justice was equally emphatic that no reasonable person could on the construction of the relevant items in the Schedule to the Tariff Act hold that the consignment of fountain pens could fall under any item other than 453 or be charged a duty other than the 30 per cent
provided under that item
Dealing with the other point about the writ petitioner not having exhausted his statutory remedy of Revision to the Government the learned Chief Justice disagreed with the view of the learned Single Judge that the Customs authorities lacked or exceeded their jurisdiction in assessing duty at a higher figure than was justified by the relevant items of the Schedule to the Tariff Act
The learned Chief Justice after pointing out that it was the settled practice of the Bombay High Court not to entertain writ petitions by parties who had not exhausted their statutory remedies however held that in the case before the Bench the remedy of applying in Revision to the Central Government had become time barred by the date  of the hearing of the appeal and that on that ground he would not interfere with the order of the learned Single Judge
The appeal was therefore dismissed
The Collector of Customs having obtained special leave from this Court has brought this appeal before US
The learned Solicitor General appearing for the appellant argued the appeal on the basis that the view of the learned Judges of the Bombay High Court that on any reasonable interpretation of the items in 758 the Schedule to the Tariff Act the consignment imported by the respondent could have been liable only to a duty of 30 per cent
under item 453 was correct
We might add that even apart from this concession bay for the purpose of argument we entirely agree with the learned Judges that the tariff items in the Schedule are not reasonably capable of any other construction
In reaching this conclusion we have taken into account the fact that fountain pens complete were taken out of the general item 45 Stationery etc  under which they were originally included by an amendment effected in 1949 in pursuance of an international agreement and that though the duty on stationery was thereafter increased from 30 to 37 12 per cent under the provisions of the Finance Act 1949 the duty of 30 per cent
fixed on fountain pens re mained unchanged
This at least showed that they were treated as a specialized class of stationery which required separate treatment
The only question therefore is whether a fountain pen in which certain of its essential parts are gold or silver plated falls outside the category of fountain pens complete
It cannot be again said that anib cap and clip are essential parts of a fountain pen and not more accessories and that without them there would be no question of having a fountain pen complete
Next it is a well known and recognized fact that most fountain pens in ordinary use have nibs Which are gold plated
In this connection it should not be overlooked that gold apart from being a store of value is a metal which has industrial uses by its malleability and its resistance to oxidation on contact with acids and chemicals which enter into the composition of ink
The use of gold plating for nibs is therefore for increasing the utility of the nib for its primary function of writing and not with a view to enhancing its value by the cost of the metal
In the case before us it would be noticed that the pens permitted to be imported had to be not less than Rs 25 each CIF value presumably with a view to protect the market for cheaper pens of indigenous manufacture
Most pens of the 759 value specified in the licence it need hardly be added would have gold plated nibs
It could certainly not be that it was the intention of the authorities that notwithstanding Entry 453 reading fountain pens complete there could practically be no import of pens under that item because with the limit of value prescribed in the licence the permitted pens would mostly have gold plated nibs
Different considerations might arise when gold or gold plating is used not for poses essential for the utility of the pen as such Purmerely as an addition to its value
These cases have been excepted by Justice Tendolkar and we endorse his remarks on this point
No such question arises on the pens imported by the respondent and it was obviously because of this that the learned Solicitor General did not address us on the correctness of the interpretation placed on relative scope of entries 453 and 618 by the learned Judges of the High Court
The only point therefore requiring to be considered is whether the High Court should have rejected the writ petition of the respondent in limine because he had not exhausted all the statutory remedies open to him for having his grievance redressed
The contention of the learned Solioitor General was that the existence of an alternative remedy was a bar to the entertainment of a petition under article 226 of the Constitution unless 1 there was a complete lack of jurisdiction in the officer or authority to take the action impugned or 2 where the order prejudicial to the writ petitioner has been passed in violation of the principles of natural justice and could therefore be treated as void or non est
In all other cases he sub mitted Courts should not entertain petitions under article 226 or in any event not grant any relief to such petitioners
In the present case he urged the High Court in appeal had expressly dissented from the reasoning of the learned Single Judge as regards the lack of jurisdiction of the Customs Officers to adjudicate regarding the item under which the article imported fell and the duty leviable thereon
Nor was there any complaint in this case that the order had been passed without an opportunity to the importer 760 to be heard so as to be in violation of the principles of natural justice
The learned Solicitor General questioned the correctness of the reasoning of the learned Chief Justice in condoning the conduct of the respon dent in not moving the Government in revision by taking into account the time that had elapsed between the date of the impugned order and that on which the appeal was heard
The submission was that if this were a proper test the rule as to a petitioner under article 226 having to exhaust his remedies before he approached the Court would be practically a dead letter because in most cases by the date the petition comes on for hearing the time for appealing or for applying in revision to the departmental authorities would have lapsed
We see considerable force in the argument of the learned Solicitor General
We must however point out that the rule that the party who applies for the issue of a high prerogative writ should before he approaches the Court have exhausted other remedies open to him under the law is not one which bars the jurisdiction of the High Court to entertain the petition or to deal with it but is rather a rule which Courts have laid down for the exercise of their discretion
The law on this matter has been enunciated in several decisions of this Court but it is sufficient to refer to two cases In Union of India vs T R Varmal Venkatarama AyyarJ speaking for the Court said It is well settled that when an alternative and equally efficacious remedy is open to a litigant he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ
It is true that the existence of another remedy does not affect the juris diction of the Court to issue a writ but as observed by this Court in Rashid Ahmed vs Municipal Board Kairana  a the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs 
Vide also 1 1958 SCR 499 503504
1a  761 KS Rashid and Son vs The Income tax Investigation Commission 
And where such remedy exists it will be a sound exercise of discretion to refuse to interfere in a petition under article 226 unless there are good grounds therefore
 There is no difference between the above and the formulation by Das C J in The State of Uttar Pradesh vs Mohammad Nooh 2 where he observed  
It must be borne in mind that there is no rule with regard to certiorari as there is with mandamus that it will lie only where there is no other equally effective remedy
It is well established that provided the requisite grounds exist certiorari will lie although a right of appeal has been conferred by statute
The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in arriving at a conclusion as to whether it should in exercise of its discretion issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies if any
But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other ade quate legal remedies
 After referring to a few cases in which the existence of an alternative remedy had been held not to bar the issue of a prerogative writ the learned Chief Justice added It has also been held that a litigant who has lost his right of appeal or has failed to perfect an appeal by no fault of his own may in a proper case obtain a review by certiorari In the result this Court held that the existence of other legal remedies was not per se a bar to the issue 1 1954 SCR 738
96 2   605 607
762 Of a writ of certiorari and that the Court was not bound to relegate the petitioner to the other legal remedies available to him
The passages in the judgments of this Court we have extracted would indicate I that the two exceptions which the learned Solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive and 2 that even beyond them a discretion vested
in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy
We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court and that in a matter which is thus preeminently one of discretion it is not possible or even if it were it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court
The question that we have now to consider is has the discretion which undoubtedly vested in the Court been so improperly exercised as to call for our interference with that order
We might premise this discussion by expressing our opinion on two matters merely to prevent any misunderstanding
First we entirely agree with Chagla C J that the order of the Assistant Collector of Customs in assessing duty at 781 per cent
or of the Collector of Customs in confirming the same was not void for lack of jurisdiction
The interpretation they put on the relevant items in the Tariff Schedule might be erroneous even grossly erroneous but this error was one committed in the exercise of their jurisdiction and had not the effect of lacing the resulting order beyond their jurisdiction
Secondly as we have already indicated we must express our dissent from the reasoning by which the learned Judges of the High Court held that the writ petitioner was absolved from the normal obligation to 763 exhaust his statutory remedies before invoking the jurisdiction of the High Court under article 226 of the Constitution
If a petitioner has disabled himself from availing himself of the statutory remedy by his own fault in not doing so within the prescribed time he cannot certainly be  permitted to urge that as a ground for the Court dealing with his petition under article 226 to exercise its discretion in his favour
Indeed the second pass age extracted from the judgment of the learned C J in Mohammad Nooh s case
1 with its reference to the right to appeal being lost through no fault of his own emphasizes this aspect of the rule
The question however still remains whether in the circumstances of this ease we should interfere with the decision of the High Court
In considering this we cannot lose sight of three matters 1 that the levy of the duty at 78 34 per cent
was manifestly erroneous and cannot be supported on any reasonable construction of the items in the Tariff Schedule 2 it was stated by the Customs authorities in answer to the writ petition in the grounds of appeal to the High Court under the Letters Patent as also in the statement of case before us that the Central Board of Revenue had issued a ruling to the effect that fountain pens with nibs or caps which were gold platled fell within item618
This might be some indication that the adjudication by the Assistant Collector of Customs and by the Customs Collector on appeal was in pursuance of a settled policy of the entire hierarchy of the department
Without going so far as to say that a Revision to the Central Government might in the circumstances be a mere futility we consider that this is not a matter which would be wholly irrelevant for being taken into account in disposing of the appeal before us
After all the basis of the rule by which Courts insist upon a person exhausting his remedies before making application for the issue of a prerogative writ is that the Court s jurisdiction ought not to be lightly invoked when the subject can have justice done to him by resorting to the remedies prescribed by statutes
3 Lastly the learned 1   605 607
764 Solicitor General does not dispute the correctness of the principle of law as enunciated by Chagla C J his complaint is that the law as laid down by the learned Chief Justice has not
been properly applied to the facts of the case before him
If the challenge to the judgment of the High Court were of the former type this Court might have to interfere to lay down the law correctly lest error creep into the administration of justice
But where the error is only in the application of the law correctly understood to the facts of a particular case we should be persuaded that there has been a miscarriage of justice in the case before us before being invited to interfere and this the learned Solicitor General has not succeeded in doing
It would be remembered that the question is not whether if the respondent s application were before us we should have directed the writ to issue but whether the learned Judges of the High Court having in their discretion which they admittedly possessed made an order there is justification for our interfering with it
The two matters set out earlier should suffice to show that no interference could be called for in this appeal
We consider therefore on the whole and taking into account the peculiar circumstances of this case that the High Court has not exercised its discretion improperly in entertaining the writ application or granting the relief prayed for by the respondent and that no care for interference by us in an appeal under article 136 of the Constitution has been made out
The appeal fails and is dismissed with costs
SARKAR J
In this case the respondent had imported a certain number of fountain pens plated with gold
The goods were assessed to import duty by an assessing officer of the Indian Customs under item 618 of the first schedule to the Customs Tariff which dealt with Articles other than cutlery and surgical instruments plated with gold or silver and provided for a duty of 78 34 per cent
ad valorem
The respondent appealed from this assessment to the Collector of Customs under a 188 of the  on the ground that the assessment should have been 765 under item 453 of that schedule which dealt with Fountain pens complete and provided for a duty of 30 percent ad valorem
He did not dispute that the fountain pens imported by him were gold plated
His appeal was dismissed
The respondent then moved the High Court at Bombay for a writ to quash the order of assessment under item 618
The application was allowed by Tendolkar T who issued a writ of mandamus directing the Collector of Customs to release the goods upon payment of the duty specified in item 453
The appeal by the Collector of Customs from the order of Tendol kar J to an appellate bench of the High Court was dismissed
The Collector has therefore filed the present appeal
The first question is whether the writ should have been refused on the ground that the respondent had another remedy namely an application to the Central Government under section 191 of the to revise the order of the Collector
Tandolkar J held that the writ could issue though the other remedy had not been pursued as the order of assessment under item 518 was without jurisdiction
This was clearly wrong
The Collector had ample jurisdiction to decide under which item in the schedule the fountain pens had to be assessed to duty and if he made a mistake in his decision that did not make his order one without jurisdiction cp
Gulabdas  Co vs Assistant Collector of Customs 1
The learned Judges of the appellate bench held that the writ was properly issued not because the assessing authority had no jurisdiction to assess the goods under item 618 but because at the date the matter had come before them the other remedy had become barred
This again isin my view plainly erroneous for a party who by his own conduct deprives himself of the remedy available to him cannot have a better right to a writ than a party who has not so deprived himself
Normally and the present has not been shown to be other than a normal case a writ of mandamus is not issued if other remedies are available
There would be stronger reason for following this rule where the obligation 1 A1R 1957 S C 733 766 sought to be enforced by the writ is created by a statute and that statute itself provide the remedy for its breach
It should be the duty of the courts to see that the statutory provisions are observed and therefore that the statutory authorities are given the opportunity to decide the question which the statute requires them to decide
The fact that the Central Government had on a prior occasion decided as appears in this case to have happened that fountain pens of the kind which the respondent had imported were liable to ditty under item 618 cannot furnish any reason justifying a departure from the normal rule or the issue of a writ without that government having been moved under section 191
This prior decision of the Central Government could be a reason for such departure only on the presumption that it would not change its view even if that view was shown to be incorrect
I cannot imagine that a court can ever make such a presumption
Therefore it seems to me that it would have been proper to refuse the writ on the ground that the respondent had another remedy available to him which he had not pursued
On the present occasion however I do not wish  to decide the case on that ground
Next I feel the gravest doubt if the case is one for the issue of a writ of mandamus
It is of interest to observe that the respondent had in his petition to the High Court himself asked for a writ of certiorari
A writ of mandamus issues in respect of a ministerial duty imposed by a statute it cannot issue where the duty to be performed is of a judicial nature except for the purpose of directing that the judicial duty should be performed that is a decision should be given on the question raised
In John Shortt s book on Informations Mandamus and Prohibition it is stated at p 256 If the duty be of a judicial character a mandamus will be granted only where there is a refusal to perform it in any way not where it is done in one way rather than another erroneously instead of properly
In other words the Court will only 767 insist that the person who is the judge shall act as such but it will not dictate in any way what his judgment should be
If however the public act to be performed is of a purely ministerial kind the Court will by mandamus compel the specific act to be done in the manner which to it seems lawful
 It does not seem to me that the duty which the created and the performance of which was sought to be enforced by a writ in the present case can properly be said to be a ministerial duty
That duty was to decide which item in the Customs Tariff was applicable to the respon dent s goods and to realise the customs duty specified in that item
In so far as the statute required the officer to realise the Customs levy I find it difficult to see how it can be said to be a public duty to the performance of which the respondent had a legal right and without this right he was not entitled to the mandamus see Ex parte Napier 
In so far again as the Act required the Customs Officer to choose the proper item in the Customs Tariff for assessment of the customs levy on goods it in my view involves performance of work of a quasi judicial nature
The observation of Das J in Province of Bombay vs K section Advani  which I am about to read fully fits this case If a statutory authority has power to do any act which will prejudicially affect the subject then although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it the final determination of the authority will yet be a quasi judical act provided the authority is required by the statute to act judicially Now the empowers the Customs authorities to impose a certain duty on goods imported and this no doubt prejudicially affects the importer
The Act further clearly requires the authorities to proceed judicially in imposing that duty when a dispute arises that is after giving a hearing to the party affected see as 29 31 and 32 of the Act
In this case a hearing 1  2  725
768 was in fact given to the respondent
This taken with the provisions as to a right of appeal from the decision Of the first assessing officer and as to the right to move the government in revision from the decision in the appeal would clearly indicate that the authorities have to act judicially
In Gulabdas  Co vs Assistant Collector1 this Court proceeded on the basis that the duty of assessing the customs levy was of a judicial nature
Therefore I feel the gravest doubt if the present is a case where a mandamus could at all issue
No doubt if a mandamus could not issue because the act which the statute required to be performed was not a ministerial one but judicial in its character the case might be a fit one for the issue of a writ of certiorari
But that writ cannot in any event issue unless the proceedings disclosed an error apparent on their face
In issuing a certiorari again the Court does not examine the judicial act questioned as if it was hearing an appeal in respect of it see Satyanarayan Laxminarayan Hegde vs Mallikarjun Bhavanappa Tirumale2
I do not propose to discuss this question further in the present case for it was not considered by the High Court nor raised at our bar
I proceed on the basis that it was a case where an application for a mandamus Jay
The respondent in substance asked for and obtained a writ directing the Customs authorities to release the goods on payment of duty at the rate of 30 per cent
ad valorem as prescribed by item 453
This was on the basis that the duty should have been levied under that item and not under item 618 as the Customs authorities had done
The question then is was there a clear duty on the assessing authorities to assess the goods under item 453 dealing with Fountain pens completed and not to do so under item 618 dealing with Articles other than cutlery and surgical instruments plated with gold
All the learned Judges of the High Court agreed that this clear duty had to be established before the respondent could be held entitled to a mandamus and they found that the Act created such 1 AIR 1957 SC 733
2 1960 1 SCR 890 901
769 a duty
They said that item 453 was a specific provision and therefore it had to be applied in preference to item 618 which was a general provision
I am unable to agree with this view
What apparently the learned Judges had in mind and applied was the rule of construction of statutes that when two provisions in an Act are inconsistent with each other if one is specific and the other general the specific provision prevails over the general
Now this rule like all other rules of construction derives its justification from the fact that it assists in ascertaining the intention of the legislature
The reason why it so assists is this
When two provisions enacted by the legislature are inconsistent and one cannot operate at all if the other is given full effect a question arises as to what the legislature intended
Clearly it could not have intended that a provision that it enacted should have no operation at all
Therefore it is to be presumed that the legislature intended that both the provisions would at least have some effect if they could not have their full effect
The rule under discussion gives effect to this presumed intention of the legislature
In order to give effect to this intention the rule provides that the provision with a narrower scope of operation should have effect so far as it goes in preference to the provision with the larger scope of operation so as to restrict the operation of the latter which without such restriction would have wiped the narrower provision out of the statute book altogether
This rule permits both the provisions to have effect it reduces the scope of one and prevents the other from becoming a dead letter
This aspect of the rule would I believe appear clearly from a statement of it by Sir John Romillyn pretty vs Solly1 which I now set out The rule is that wherever there is a particular enactment and a general enactment in the same statute and the latter taken in its most comprehensive sense would overrule the former the particular enactment must be operative and the general 1   770 enactment must be taken to affect only the other parts of the statute to which it may properly apply
 The test of the applicability of the rule therefore is that one enactment must overrule the other
The one overruled is called specific only in comparison with the other which is in the same way only called general
There need be nothing inherent in the nature of the enactments which apart from a consideration of their comparative scopes mark one out as specific and the other as general
When one overrules the other it must include within its scope that other and so becomes general in comparison with the other
If two provisions were merely in conflict with each other each affecting the other and none overruling the other and itself remaining in force no question of calling one general and the other specific would arise
I should suppose when Sir John Romilly talked of one enactment overruling the other
he meant completely overruling
That would make the rule sensible for then it would clearly be a guide to the intention of the legislature which is that all tile provisions are intended to have effect
This reason to support the rule would not exist if it was applied to a case where the provisions only partially affected each other for then both the provisions would have at least some operation
It would further be impossible to say from a comparison of the degrees of the effect of each on the other if such comparison was possible what the intention of the legislature was
I am not aware that it has ever been said that when two pro
visions partially affect each other without one completely overruling the other the legislature intended the one less affected should yield to the other or even the other way about
To such a case the rule would in my view have no application
The present is a case of that kind
I now confine myself only to items 453 and 618 for no question as to any other item in the Tariff arises for applying the rule
If gold plated fountain pens were assessed under item 618 there would still be plenty of scope left for item 453 to operate upon for there would 771 be many kinds of complete fountain pens without gold plating
Likewise also if gold plated fountain pens were assessed under item 453 there might be many other gold plated articles for being assessed under item 618
Item 618 cannot be said to overrule item 453 completely
Item 618 cannot be said to be a general provision and item 453 a specific one
There is no scope here of applying the rule giving effect to a specific enactment in preference to the general
What then should be done Under which item should the gold plated fountain pens then be assessed to duty In my view they were properly assessed under item 618
The item is clearly intended to apply to all gold plated articles other than the two expressly excepted namely cutlery and surgical instruments
There is no reason why this intention should not be given effect to
The Customs Tariff Schedule no doubt makes separate provisions for various individual articles
A fountain pen is one of such articles
If a gold plated fountain pen is for the reason that fountain pens are separately provided for to be taken out Of item 618 all other articles separately dealt with in the schedule would have for the same reason to be taken out of that item even though they happen to be plated with gold
The result of that would be that item 618 would apply to those articles which are not separately provided and as Customs Tariff Schedules are made as exhaustive as they can be there would be very few articles if any left to which item 618 might be applied
It does not seem to me that this could have been intended
Item 618 as already stated is intended to take in all gold plated articles except cutlery and surgical instruments
A proper construction of this item must give effect to this intention
Item 453 applies to fountain pens
Now it is not necessary for a fountain pen to be gold plated at all
Indeed the large majority of them are not gold plated
It is true that a fountain pen does not cease to be a fountain pen because it is plated with gold
It is however equally true that a gold plated fountain pen is an article plated with gold
A fountain pen may or may not be 772 gold plated but a gold plated article can only be a gold plated article
Therefore it seems to me that item 453 was intended to apply to fountain pens simpliciter that is without gold plating or other embellishments which might properly bring them under another item in the schedule
This in my view would best harmonise the different items in the Tariff schedule and carry out the intention of the legislature
This can be illustrated by an example
Suppose a fountain pen was Studded with diamonds
Could it then be said that the legislature intended to pose on them a duty of 30 per cent
ad valorem under item 453 and the diamonds were not intended to be assessed under item 6110 which deals with jewels and provides for a higher duty
I do not think that a possible view to take
I think therefore that the assessment in the present case under item 618 was proper
I would hence allow the appeal
By COURT In accordance with the opinion of the majority this appeal is dismissed with costs
Appeal dismissed


Summary:
Under a licence granted for the import of fountain pens at not less than Rs 25 CIF value the respondent imported Sheaffer pens from Australia which had nibs which were gold plated and also caps and clips of similar composition
The imported goods were assessed to duty by the customs authorities under item 618 of the First Schedule to the Indian Tariff Act 1934 dealing with Articles other than cutlery and surgical instruments plated with gold or silver which provided for a duty Of 781 per cent
ad valorem while the respondent claimed that the goods fell within item 453 which related to the article described as Fountain pens complete the rate of duty being 30 per cent
ad valorem
Section 191of the  enabled any person aggrieved by an order of the Collector of Customs to file a revision to the Central Government but the respondent without resorting to this remedy filed a writ application in the High Court of Bombay under article 226 of the Constitution of India to quash the imposition of the duty at the higher rate and to direct the release of the goods on payment of duty at 30 per cent
The Single judge who disposed of the application took the view that fountain pens did not cease to be fountain pens though they contained parts which were plated with gold that so long as they were Fountain pens complete only duty under item 453 could be levied and that in the context of the items in the Tariff Schedule it was not reasonably possible for any person to take a contrary view
Accordingly the customs authorities were restrained from enforcing payment of any duty higher than 30 per cent
On appeal the Appellate Bench of the High Court agreed with the interpretation of the tariff items and held that though it was not the practice to entertain writ petitions by parties who had not exhausted their statutory remedies as the remedy of applying in revision to the 95 754 Central Government had become time barred by the date of hearing of the appeal it would not interfere with the order of the Single judge
Held that the High Court was in error in its view that though the respondent had failed to exercise his statutory remedy the fact that it had become time barred at the date of the hearing of the appeal against the order in the petition under article 22 6 was a good ground for the Court to exercise its discretion in granting the relief prayed for by the respondent in his petition
Held further Sarkar J dissenting i that the consignment imported by the respondent was liable only to a duty of 30 per cent
under item 453 in the First Schedule to the Indian Tariff Act 1934 and that the tariff items in the Schedule were not reasonably capable of any other construction
2 that as in the present case the levy of the duty under entry 618 was manifestly erroneous and the Central Board of Revenue had issued a ruling to the effect that fountain pens with nibs or caps which were gold plated fell with entry 618 it could not be said that the High Court had exercised its discretion improperly in entertaining the writ application so as to justify interference in an appeal under article I36 of the Constitution
Per Gajendragadkar Wanchoo Das Gupta and Rajagopala Ayyangar JJ
The rule that a party who applies for the issue of a high prerogative writ should before he approaches the court have exhausted other remedies open to him under the law is not one which bars the jurisdiction of the Court to entertain the petition or to deal with it but is rather a rule which courts have laid down for the exercise of their discretion
Union of India vs T R Varma 1958 SCR 499 and The State of Uttar Pradesh vs Mohammad Nook   relied on
Per Sarkar J Item 618 in the First Schedule to the Indian Tariff Act 1934 is intended to apply to all gold plated articles other than cutlery and surgical instruments while item 453 is applicable to fountain pens simpliciter that is without gold plating
Such a view would harmonise the different items in the Tariff Schedule and carry out the intention of the legislature
The customs authorities were correct in assessing gold plated fountain pens under entry 618