Appeal No 568 of 1960
Appeal from the judgment and order dated April 6 1956 of the Madras High Court in 0
S A No 147 of 1953
H N Sanyal Additional Solicitor General of India V D Mahajan and P D Menon for the appellant
RGanapathy Iyer M section K Sastri and M section Narasimhan for the respondent
April 19
The Judgment of the Court was delivered by AYYANGAR J
The point involved in this appeal which comes before us on a certificate of fitness under article 133 1e granted by the High Court of Madras is a very short one and relates to the nature and extent of the jurisdiction posses sed by the High Court in considering the validity 279 of an order of the Customs Authorities interpreting the provisions of the entries in the Tariff Schedule as regards the imposition of duties
The respondent imported from Australia a quantity of oats which was described in the indent contract and shipping documents as  standard feed oats
The commodity imported consisted of oats in whole grain
The question raised related to the proper classification of the goods imported under the Import Trade Control Schedules current during the period July to December 1952 when the consignment reached India
The controversy centered round the point whether the feed oats fell within item 42 or within item 32 of the Circular
Item 42 ran  Fodder bran and pollards OGL Soft ie this item was covered by an open general licence and so no special import licence was necessary for the import of these goods from a soft currency area while as regards item 32 the entry ran Graio not otherwise specified including broken grain but excluding flour a oats b others Ports Nil AV which meant that a licence was necessary for the importation of the goods specified in it which would be granted by the Joint Chief Controller of Imports or Exports at Calcutta and Bombay if they were the ports of entry and by the Deputy Chief Controller of Imports  Exports Madras if they were to be imported through Madras nil that no quotas were specified limiting the quantity to be imported  that actual users AU could apply for the licence
280 The respondent who carried on business in fodder under the name and style of Balakrishna Flour Mills placed an order with an Australian firm for the supply of whole grain feed oats without obtaining any licence for the import
The goods arrived in Madras on August 1 1952 and when the respondent attempted to clear the goods the Customs Authorities insisted on the production of a licence before he would be permitted to do so
The Assistant Collector hold that
the goods imported fell within item 32 and as admittedly the respondent held no licence from the Deputy Chief Controller of Imports  Exports Madras covering the import there had been a contravention of a 19 of the Sea Customs Act read with section 32 of the Import  Export Control Act 1947 and so proceeded to deal with the violation under section 167 8 of the Sea Customs Act
He directed the confiscation of the good sand imposed a fine of Rs5000 in lieu of confiscation if the
respondent desired to clear the goods
An appeal filed to the Collector of Customs was rejected and thereafter the respondent moved the High Court for the issue of a writ of mandamus under section 45 of the Specific Relief Act
In his affidavit in support of the application the respondent besides contending that oats in full grain fell within the head fodder  under item 42 set out earlier because 1 he had imported them for being made available solely for feeding race horses at Bangalore 2 that in South India oats was not used as human foods but only as feed for horses and 3 that in any event he had been misled by an answer that he received from the Deputy Chief Controller of Imports Madras of whom he had made an enquiry as to whether feed oats could be imported under an open general licence under serial No 42 and had received an affirmative answer The learned 281 Single Judge who heard the application dismissed it on the ground that the order of the Customs Authorities classifying uncrushed feeds oats as grain and not as fodder could not be said to be either perverse or malafide and that consequently the Court could not interfere with the decision of the authorities
An appeal was perferred therefrom to a Division Bench and the learned Judged allowed the appeal and issued a direction prohibiting the Collector and his subordinates from collecting or taking steps to recover the fines and penalties imposed on the respondent
It is the correctness of this order of the Division Bench that is challenged in this appeal
Shortly stated the ground on which the learned Judges allowed the respondent s appeal were  1 that the decision of the Customs authorities as regards the entry of the Tariff classification within which an imported commodity fell was not final but was open to judicial review and had ultimately to be decided by the Courts 2 In the case before the Court entry 32 reading grain had in the absence of any specific entry regarding oats to be read as excluding all grains which would be fodder ie which were usually used as cattle or animal feed and that as the respondent had imported the oats for use as horse feed the proper item within which the goods imported fell was item 42 Fodder etc
In arriving at this conclusion the learned Judges referred to the answer of the Deputy Chief Controller to the query by the respondent to which we have adverted earlier as a circumstance indicative of the doubts entertained by the departmental authorities themselves on this matter
With very great respect to the learned Judges we are unable to agree with them both as regards the function and jurisdiction of the Court in matters 282 of this type as well as in their actual construction of the relevant entries in the Import Trade Circular
As regards the limits of the jurisdiction of the Court it is sufficient to refer to the decision in Venkatesvaram vs Wadhwani
1 That was a case where a party moved the High Court under Art226 of the Constitution and not as here under section 45 of the Specific Relief Act under which the power of the Court to interfere is certainly narrower and not wider
This Court proceeded on the basis that it is primarily for the Import Control authorities to determine the head or entry under which any particular commodity fell but that if in doing so these authorities adopted a construction which no reasonable person could adopt ie if the construction was perverse then it was a case in which the Court was competent to interfere
In other words if there were two constructions which an entry could reasonably bear and one of them which was in favour of Revenue was adopted  the Court has no jurisdiction to interfere merely because the other interpretation favourable to the subject appeals to the Court as the better one to adopt
In the present case it could not be contended that uncrushed oats did not answer the description of grain and therefore the decision of the Customs authorities holding that the oats imported fell within item 32 could not be Raid to be a view which on no reasonable interpretation could be entertained
In other words the conclusion or decision of the Customs authorities wag rationally supportable
We consider that even if there was no specific reference to oats in entry 32 any particular species of grain cannot be excluded merely because it is capable of being used as cattle or horse feed
The word  fodder is defined in the Oxford  dictionary as dried food hay straw etc
for stall feeding Cattle
Without resorting to 1   283 Johnson s famous definition of  oats in his Dictionary it is sufficient to point out that oats though they may serve as food for horses is also used as human food in other words it is not by its nature or characteristic capable of serving solely as food for animal and incapable of use in the human dietary
For instance all coarse grains like Ragi and Khambu serve as food for man as well as for cattle
The mere fact therefore that a grain is capable of being used as horse or other cattle feed does not make it fodder excluding it from the category of grain to which it admittedly belongs
The decision of the Assistant Collector
and of the Collector on appeal holding the oats imported by the respondent to be grain cannot therefore be characterised as perverse or malafide and in the circumstances we consider that the learned Judges of the High Court erred in interfering with the order of the appellant
In this particular case however the matter is placed beyond the pale of controversy by the specific reference to oats in entry 32 where grain is classified into two categories oats and other
grains
It is apparent that unfortunately the attention of the learned Judges was not drawn to the entry in full because in the course of the judgment they point out that the construction of entry 42 would be different if there had been a specific reference to oats in entry 32
Learned Counsel for the respondent laid some stress on the respondent having been misled by the answer of the Deputy Chief Controller of Exports to a query as regards the scope of entry 42
The answer which was stated to have misled was in these terms  Feed oats classifiable under serial 42 of Part IV can be imported under Open General License No XXIII
284 an answer by no means a model of clarity
This letter is dated September 14 1951 and it is the case of the respondent that he placed an order for the import of feed oats because he was led to believe that for its import no licence was necessary
The contract for the purchase of the foods for import was entered into in the beginning of June 1 952 but before that date the Deputy Chief Controller wrote a further letter to the respondent on January 1 1952 clarifying the answer he gave in his earlier letter and pointing out that whereas if the oats were in whole grain it would fall within item 32 but if the same was crushed it would be fodder within item 42
The respondent however denied having received this letter and there is no specific finding on this point by the learned Judges of the High Court
We do not propose to record any finding either
We are drawing attention to this matter merely for pointing out that it is a matter which the authorities could properly take into account in modifying if they consider that the respondent has really been misled the quantum of penalty imposed on the respondent
The appeal is accordingly allowed and the order of the Division Bench of the High Court set aside
The application filed by the respondent under section 45 of the Specific Relief Act will stand dismissed
In the circumstances of the case we direct that the parties bear their own costs in this Court
Appeal allowed


Summary:
Item 42 of Part IV of the Import Trade Control Schedule permitted fodder   to be imported without a special import licence from a soft Currency area
Item 32 of the same Schedule related to grain and included oats and a licence was necessary for importing goods covered by this item
The respondent imported from Australia without a licence goods described as feed oats for feeding race horses
He claimed that the goods were covered by Item 42 and could be imported without a licence
The customs authorities held that the goods were grains within the meaning of Item 32 which could not be imported without a licence confiscated the goods and imposed a penalty in lieu of confiscation
The respondent moved the High Court for the issue of a writ of mandamus under section 45 specific Relief Act
The High Court held that the 278 goods were covered by item 42 and issued a writ prohibiting the authorities from recovering the penalty imposed
Held that the High Court had no jurisdiction to interfere with the decision of the customs authorities that the goods fell within item 32
It is primarily for the Import Control authorities to determine the head of entry under which any particular commodity falls and only when the construction adopted is perverse are the courts entitled to interfere
In the present case the decision of the customs authorities was not one which could not be supported on anyreasonable basis and could be called perverse
Venkatesvaran vs Wadhwani A I R  referred to
Held further that the goods imported fell within item 82 and not within item 42
Oats are undoubtedly grain
Any particular species of grain cannot be excluded from the item grain merely because it is capable of being used as cattle or horse feed
The matter is made clear by the reference to coats in item 32 where grain is classified into two categories oats and other gains