Appeal No 1361 of 1966
Appeal by special leave from the judgment and order dated April 5 1963 of the Madras High Court in Second Appeal No 1287 of 1960
Niren De Attorney General V A Seyid Muhammad RN Sachthey and SP Nayar for the appellant
Lily Thomas for the respondent
The Judgment of the Court was delivered by Shah J
AV Narasimhalu hereinafter called the plaintiff imported 43 reels of newsprint 1314 width under a bill of Entry dated July 15 1954
The width of the newsprint being less than 15 no import duty was payable under the Open General Licence The Assistant Collector of Customs held that the commodity imported fell within item 44 of the Customs Tariff and levied a duty of 33 38 ad valorem
The plaintiff paid the duty under protest and applied for refund of the duty relying upon a decision of the High Court of Madras in writ petition No 402 of 1954 in which it was decided that newsprint of width less than 15 was exempt from duty
This application was rejected
An appeal to the Collector of Customs and a revision application to the Central Board of Revenue were unsuccessful
The customs authorities rejected the claim on the ground that the claim not having been made within three months of the date of demand was barred under section 40 of the 
The plaintiff then instituted an action in the City Civil Court for a decree for Rs 2669 62 against the Union of India
The Trial Court decreed the claim holding that the claim was not barred
In appeal the Principal Judge City Civil Court held that the City Civil Court had no jurisdiction to entertain the suit
In so holding he relied upon the judgment of the Judicial Committee in Secretary of State for India vs Mask  Co 1
In Second Appeal the High Court of Madras reversed the judgment of the Principal Judge City Civil Court and restored the decree passed by the trial court
The Union of India has appealed to this Court with special leave
It is unnecessary to consider whether the claim is barred under section 40 of the  for in our judgment the Civil Court had no jurisdiction to
entertain the suit
Section 188 of the  insofar as it is relevant provides Any person deeming himself aggrieved by any decision or order passed by an officer of Customs under 1 LR 67 IA 222
147 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 Central 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 Central Government
Every order passed in appeal under this section shall subject to the power of revision conferred by section 191 be final
Section 191 provides The Central Government may on the application of any person aggrieved by any decision or order passed under this Act by any officer of Customs or Chief Customs Authority and from which no appeal lies reverse or modify such decision or order
The Act is a complete code dealing with liability to pay customs duty and for obtaining relief against excessive or erroneous levy and other related matters
The jurisdiction of the Civil Court to entertain a suit on the ground that the duty was improperly or illegally levied is excluded
It is true that the decision or order passed under section 188 of the in appeal to the appellate authority is expressly declared final
But on that account it cannot be held that by refusing to appeal against the decision or by refusing to claim relief in the manner provided by section 188 and section 191 of the  a party aggrieved by the order of a Customs Officer may invest the Civil Court with jurisdiction to entertain a suit
In Mask  Company s case1 a firm of merchants imported a quantity of betelnuts into
British India
The Assistant Collector of Customs assessed them for the purposes of duty on a tariff as boiled rejecting the contention of the importers that they Were raw sliced betel nuts subject to duty ad valorem
The importers appealed from the decision of the Assistant Collector to the Collector of Customs
The appeal was dismissed and in revision to the Government of India the Collector s decision was affirmed
A suit was then filed by the importers to recover the excess amount collected from them by levying duty upon a tariff and not ad valorem
Before the Judicial Committee it was contended that the decision or order passed by the officer of Customs could only be challenged by an appeal under section 188 of the and jurisdiction of the Civil Court was excluded
1 LR 67 IA 222
148 Alternatively it was contended that the right of appeal conferred by section 188 constituted a procedure which was alternative to procedure in the civil courts and since the importers in that option had chosen to proceed under section 188 they were bound by that election and were thus excluded from resort to the civil courts
The Judicial Committee observed that adjudication as to confiscations increased rates of duty or penalties made under the power conferred by section 182 were decisions or orders within the meaning of section 188 and that the decision of the Collector under section 188 was final and excluded the jurisdiction of the Civil Court
The Judicial Committee did not express any opinion on the question whether prior to taking an appeal under section 188 the porters would have been entitled to resort to the civil courts
But in our judgment it would not be open in all situations where a party who had right to appeal to refuse to resort to the procedure prescribed by the statute and to file a suit
The express declaration in section 188 of the that the order of the Collector in appeal shall be final does not imply that a suit will lie against the decision or order of the original authority
In a recent judgment of this Court Dhulabhai etc
vs State Madhya Pradesh and Anr1 this Court set out certain principles relating to the exclusion of the jurisdiction of the Civil Court
The propositions 1 2 5 6  7 are relevant
It may be observed that it was not the case that the Assistant Collector of Customs had not acted in conformity with the fundamental principles of judicial procedure nor was it the case that the provisions of the Act were ultra vires or unconstitutional
The Act in terms creates a special liability and provides for determination of the right of the State to recover duty and the liability of the importer to pay duty and by the clearest implication it is provided that it shall be determined by the Tribunal so constituted
The High Court in the judgment under appeal observed   the question in these
appeals is different namely whether the Collector could be said to be acting within his jurisdiction if he in direct disregard of the provisions of the Act and the Rules made thereunder levied a duty upon the goods which were not liable to duty and compelled by duress as it were the importer to pay the same before taking delivery of the goods
The result of his action was that the respective appellants had to part with certain sums of money which were collected from them under the colour of statutory power
In such a case a suit will undoubtedly 1  149 be maintainable in a civil court by showing that the Customs authorities had excessively charged duty it will really be a common law right to property being interfered with
It may be that the remedy provided under section 188 of the would be available to the aggrieved importer to challenge the levy on the ground that it was either improperly made or that the duty was collected under a mistake or under duress
But in all such cases there will also exist a remedy under the common law in a civil Court for the simple reason that these categories of cases will amount to a levy beyond the jurisdiction of the authority or one made under duress or paid by mistake
 But an erroneous decision of the Customs Authority cannot be said to be reached without jurisdiction merely because it may be shown in some collateral proceeding to be wrong
Normally an action of an administrative authority interfering with the right to property may be challanged by resort to a civil court Yet in the case of a right which depends upon a statute the jurisdiction of the civil court to grant relief may by express provision or by clear implication of the statute be excluded
Where a statute re enacts a right or a liability existing at common law and the statute provides a special form of remedy exclusion of the jurisdiction of the civil court to grant relief in the absence of an express provision will not be readily inferred
Where however a statute creates a new right or liability and it provides a complete machinery for obtaining redress against erroneous exercise of authority jurisdiction of the civil court to grant relief is barred Liability to pay a duty of custom is not a common law liability it arises by virtue of the  in respect of any grievance arising in consequence of enforcement of that liability machinery has been provided by the Act
Having regard to the complicated nature of the questions which arise in the determination of liability to pay duty of customs the Legislature has invested the power of determining liability and the manner of enforcement thereof upon a specially authorised hierarchy of tribunals
An appeal lies against the order of the Assistant Collector of Customs against an order imposing duty as well as an order refusing to refund duty and the grievance may be carried to the Central Board of Revenue
In our judgment the jurisdiction of the civil court is by clear implication of the statute excluded
We however deem it necessary to observe that the civil courts have jurisdiction to examine cases in which the Customs Authority has not complied with the provisions of the statute or the officer of customs has not acted in conformity with the fundamental principles of judicial procedure or the Authority has acted 150 in violation of the fundamental principles of judicial procedure or he has made an order which is not within his competence or the statute which imposes liability is unconstitutional or where the order is alleged to be mala fide
A civil suit will lie for obtaining appropriate relief in these cases
But the exclusion of the jurisdiction of the civil court to entertain a suit does not exclude the jurisdiction of the High Court to issue high prerogative writs against illegal exercise of authority by administrative or quasi judicial tribunals
The finality which may be declared by the statute qua certain liability either by express exclusion of the jurisdiction of the civil court or by clever implication does not affect the jurisdiction of the High Court to issue high prerogative writs
The jurisdiction of the civil court to entertain a suit challenging the validity of the imposition of the duty of customs being excluded the plaintiff s suit must fail
But it must be observed that the present is a fair illustration of the administration not making a serious attempt to avoid futile litigation for small claims
There was a judgment of the High Court of Madras on the identical question which fell to be determined
If the plaintiff had moved the High Court in exercise of its jurisdiction under Article 226 the Union had practically no defence
The Union could without loss of face accede to the request of the plaintiff to refund the amount collected
The learned Attorney General stated that the Union desired to obtain a decision of this Court on the extent of the jurisdiction of the Civil Court to entertain a suit challenging the decision of the Customs Authorities because in the view of the Law Advisers the High Court had fallen into error in enunciating the principles
But the High Court recorded the judgment under appeal after the claim was resisted by the Union
We are glad to record the assurance given by the Attorney General that whatever may be the decision in the appeal the Union of India will refund the amount of tax unauthorised recovered by the Assistant Collector of Customs
This was essentially a case in which when notice was served the Central Government should instead of relying upon technicalities have refunded the amount collected
We trust that the Administrative authorities will act in a manner consistent not with technicalities but with a broader concept of justice if a feeling is to be nurtured in the minds of the citizens that the Government is by and for the people
The appeal is allowed
The suit is ordered to be dismissed
The order of costs passed by the High Court is however maintained
There will be no order as to costs in this appeal
YP Appeal allowed


Summary:
Section 188 of the  provides for an appeal against any order of an officer of customs and the order passed in the appeal is made final subject to the revision under section 191 of the Act
The respondent claimed refund of customs duty paid by him under protest
The claim was rejected
An appeal to the Collector of Customs and a revision to the Central Board of Revenue were unsuccessful
The respondent instituted an action in the Civil Court for refund of the amount
The trial court decreed the suit but the first appellate court held that the civil court had No jurisdiction to entertain the suit
The High Court in further appeal restored the decree of the trial court
Allowing the appeal this Court HELD The civil court had no jurisdiction to entertain the suit
146 G H Where a statute creates a new right or liability and it provides a complete machinery for obtaining redress against erroneous exercise of authority jurisdiction of the Civil Court
to grant relief is barred
Where however a statute reenacts a right or liability existing at common law and the statute provides a special form of remedy exclusion of the jurisdiction of the Civil Court to grant relief in the absence of an express provision will not be readily inferred
149  D F Liability to pay duty of customs is not a common law liability it arises by virtue of the 
In respect of any grievance arising in consequence of enforcement of that liability machinery has been provided by the Act
Having regard to the complicated nature of the questions which arise in the determination of liability to
pay duty of customs the legislature has invested the power of determining liability and the manner of enforcement thereof upon a specially authorised hierarchy of tribunals
149  F G ii A civil suit will lie for obtaining appropriate relief in cases where the customs authority has not complied with the provisions of the statute or the officer of customs has not acted in conformity with the fundamental principles of judicial procedure or the authority has acted in violation of the fundamental principles of judicial procedure or has made an order which is not within his competence or the statute which imposes liability is unconstitutional or the order is alleged to
be mala fide
149 F G iii The exclusion of the jurisdiction of the Civil Court to entertain a suit does not exclude the jurisdiction of the High Court to issue high prerogative writs against illegal exercise of authority by administrative or quasi judicial tribunals
150 Dhulabhai etc
vs State of Madras Pradesh  Anr
AIR  followed
Secretary of State for India vs Mask  Co LR 67 IA 222 referred to 146