Case: Pioneer Traders And Others Vs. Chief Controller Of Imports Andexports Pondicherry

applies to these cases, even though in law it does not. 26. There is no escape from the conclusion that on the authority of this Courts decision in (1961) 1 SCR 305 the Sea Customs Act will not apply and the law formerly in force in the French Establishments, immediately before November 1, 1954 would apply, in respect of all importations into Pondicherry made on the basis of contracts concluded before November 1, 1954 . On the assumption which, as already stated, must be made in considering the preliminary objection, that the importations in these cases were made on the basis of contracts concluded before November 1, 1954 the irresistible conclusion is that the Sea Customs Act had no application to these cases. It necessarily follows that the Collector of Customs had, on the above assumption of facts, no jurisdiction to make any order in respect of these. The fact that the Collector of Customs thought, in exercising his functions as a quasi-judicial authority, that the Sea Customs Act did apply cannot possibly affect this question.30. It appears that before the Collector the petitioner did not seek to make the case which he now wants to make, viz., that the contract for supply of the goods was made in all these cases before November 1, 1954. The Collector came to the conclusion that this case, viz., that the contracts had been concluded before August 15, 1954 had not been established. It was in that view that he made the orders of confiscation with an option to pay penalty instead. It seems probable that in the appeals before the Central Board of Revenue and the revisional applications before the Government of India also the petitioners case was that the contracts had been concluded before August 15, 1954 and the case that the contracts were concluded before November 1, 1954 was not pleaded. The Member, Central Board of Revenue, in disposing of the appeals recorded his view that it was not in doubt that the goods in question were imported into Pondicherry at a time when a licence was required for their import and that the appellant did not have such a licence. In that view he affirmed the Collectors orders with a modification that the fine in lieu of confiscation be reduced. The Government of India also found no reason to interfere with the orders passed by the Central Board of Revenue. 27. These facts can however make no difference to the position in law that if in fact the importations were made on the basis of contracts concluded before November 1, 1954 the Sea Customs Act would not apply and the Collector or the Central Board of Revenue would have no jurisdiction to make any order of confiscation or penalty. Where an authority whether judicial or quasi-judicial, has in law no jurisdiction to make an order the omission by a party to raise before the authority the relevant facts for deciding that question cannot clothe it with jurisdiction.32. The substance of the matter is that the Collector assumed jurisdiction on the view that the Sea Customs Act applied to these cases : if the importations were on the basis of contracts concluded before November 1, 1954 - as we have assumed - the Sea Customs Act does not however apply to these cases. Therefore, the Collector acted without jurisdiction and the fact that the assumption of jurisdiction was based on the Collectors wrong decision, does not change that position. The writ petitions would therefore be maintainable, if the petitioner can satisfy the Court that the importations were made on the basis of contracts concluded before November 1, 1954. I would therefore reject the preliminary objection. 28. When the Universal Imports Agency case, (1961) 1 SCR 305 was decided by this Court, no objection to the maintainability of the writ petition was raised; and consequently the Court had not to consider the question whether the action taken by the Collector of Customs was with or without jurisdiction. So long as however the law as laid down by the majority judgment in that case remains good law, we must hold that the Sea Customs Act would not apply to imports in these cases also if they were made on the basis of contracts, concluded before November 1, 1954, and as explained above, that in my opinion compels the conclusion that the Collector of Customs acted without jurisdiction, if the imports were on the basis of contracts concluded before November 1, 1954. 29. It may be mentioned here in this connection that S. K. Das J. in his judgment in Ujjambais case (AIR 1962 SC 1621 ) referred to the decision of this Court in (1961) 1 SCR 305 as a case where a quasi-judicial authority has acted without jurisdiction. Kapur J. has also referred to this case and said "in any case, this is an instance of want of jurisdiction to tax transactions which the law excludes from the taxing powers of the authority levying the tax."35. Coming now to the merits of the petitions, I need only state that the materials that have been produced by the petitioner are by no means sufficient to establish the case that the contracts in these several cases were concluded before November 1, 1954. Mr. Chatterjee prayed to the Court for an opportunity to adduce further documentary evidence to convince us of the truth of the petitioners case on this point. I might perhaps have been inclined to grant this prayer. No useful purpose will however be served by my discussing that question, or the materials already on the record, as my learned brethren, having come to a conclusion that the preliminary objection should succeed, have not considered the merits of the petition. 30. The position is exactly similar in the other thirteen petitions filed by M/s. Pioneer Traders which were heard along with the petitions already discussed and my conclusion in regard to those petitions is also the same. ORDER Sinha, C.J. : 31.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]12. It will be seen from the above summary of the views of the learned Judges who constituted the majority that, though the reasons given for coming to their conclusion were slightly different they were all agreed that where an order of assessment is made by an authority with jurisdiction under a taxing statute which is intra vires, it is not open to challenge as repugnant to Art. 19(1)(g) on the sole ground that it is based on a misconstruction of a provision of the Act or of a notification issued thereunder and the validity of such an order cannot be questioned in a petition under Art. 32 of the Constitution, though it may be open to question such an order on appeal or in revision in case the statute provides for that remedy or by a petition under Arts. 226 and 227 in appropriate cases12. It will be seen from the above summary of the views of the learned Judges who constituted the majority that, though the reasons given for coming to their conclusion were slightly different they were all agreed that where an order of assessment is made by an authority with jurisdiction under a taxing statute which is intra vires, it is not open to challenge as repugnant to Art. 19(1)(g) on the sole ground that it is based on a misconstruction of a provision of the Act or of a notification issued thereunder and the validity of such an order cannot be questioned in a petition under Art. 32 of the Constitution, though it may be open to question such an order on appeal or in revision in case the statute provides for that remedy or by a petition under Arts. 226 and 227 in appropriate casesThe majority judgment on which the petitioners rely has nowhere considered the question whether the authority in that case suffered from inherent lack of jurisdiction when it decided to confiscate the goods imported and levy penalties in the alternative. All that the learned counsel for the petitioners could draw our attention to was a sentence in the majority judgment to the following effect15. As we have just indicated, the decision of this Court in the case of Universal Imports Agency, (1961) 1 SCR 305  , was not based on the ground that appropriate authority who confiscated the goods lacked inherent jurisdiction to do so. The decision, in substance, proceeded on the ground that in exercising the said jurisdiction, the authority had misconstrued S.R.O. 3315. The question, as to whether a writ petition under Art. 32 can lie on that ground was not raised before the Court and has not been considered. Therefore, it seems to us, with respect, that the observation made by Kapur J. in the case of Ujjambai (AIR 1962 SC 1621  ) that the decision-in the case of Universal Imports Agency, (1961) 1 SCR 305 affords an instance of want of jurisdiction to tax transactions which the law excludes from taxing powers of the authority levying the tax, is not very accurate. Similarly, it may be added that the inclusion of the said decision in the list of judgments cited by Das J. which, in his opinion, illustrated categories of cases where executive authorities have acted without jurisdiction, is also not justified. Since the point about the competence of the writ petition was not raised or considered in the case of Universal Imports Agency, (1961) 1 SCR 305  , it would not be accurate or correct to hold that that decision turned on the absence of jurisdiction of the appropriate authority. It is well known that after the decision of the Court in the case of Kailash Nath v. State of U.P., AIR 1957 SC 790  , some writ petitions were entertained on the ground that the jurisdiction of the Court under Art. 32 could be invoked even if a tribunal exercising quasi-judicial authority had misconstrued the law under which it purported to act. Having regard to the decision of the Special Bench in the case Ujjambai, (AIR 1962 SC 1621  ) these precedents have now lost their validityThis in our opinion is not correct. The Sea Customs Act was applied to Pondicherry by S.R.O. 3315. This S.R.O. has six paragraphs. The first paragraph gives the name of the S.R.O. and the date from which it will come into force. The second paragraph defines what are "French Establishments" to which the S.R.O. was applicable. The third paragraph lays down that certain Acts mentioned in the Schedule which are twenty-two in number would apply to the French Establishments subject to certain conditions which are not material. Sub-paragraph (2) of para 3 applies all rules under the various enactments in the Schedule to the French Establishments. Paragraph 4 lays down how references in any enactment, notification, rule, order or regulation applied to the French Establishments have to be construed. Paragraph 5 gives power to any Court, tribunal or authority required or empowered to enforce in the French Establishments any enactment specified in the Schedule to construe the enactment with such alterations, not affecting the substance, as may be necessary or proper. Then comes para 6 which we have already set out. It will be seen therefore the S.R.O. 3315 applied the Sea Customs Act and certain other Acts to the French Establishments, including Pondicherry, and para 6 in particular is similar to a repealing and saving provision to be found in an Act which repeals and re-enacts an earlier enactment. It would therefore be not improper to read para 6, as if it was incorporated in each one of the twenty-two Acts which were extended to the French Establishments by S.R.O. 3315. The construction therefore of para 6 of the S.R.O. which must be deemed to have been inserted in each one of Acts mentioned in Schedule would be a construction of the Sea Customs Act itself. Original S. 2 in the Customs Act provided for repeal of earlier enactments and for saving (though it no longer exists in the Acts as it was repealed by the Repealing Act No. 1 of 1938). In effect, therefore, para 6 of the S.R.O. would take the place of original S. 2 of the Sea Customs Act. Therefore, an interpretation of para 6 of the S.R.O. which must be deemed to have been inserted in the Sea Customs Act in place of original S. 2 would be an interpretation of the Sea Customs Act. So the contention that Ujjambais case (AIR 1962 SC 1621  ) does not apply, for there has been no misconstruction of any of the provisions of the Sea Customs Act has no force. It may be added that it is not disputed in this case that the Collector of Customs had inherent jurisdiction to deal with this matter and the only attack on his order and on the subsequent orders passed in appeal and revision is that they misconstrue the provision of para 6 of the S.R.O19. This matter can therefore be looked at in two ways. If it is held that the petitioners rested their case on only the ground that they had placed the orders for import before August 15, 1954 and were thus entitled to the benefit of the press communique the finding of the Collector to the effect that he was not prepared to believe that case for three reasons given by him cannot be said to justify a prayer for a writ because it is a finding of fact; and a writ cannot issue even if the said finding is erroneous. If, therefore, that was all that was raised by the petitioners before the authorities concerned, and the authorities concerned have found against the petitioners on the main question of fact involved in their contentions before them, it cannot be said that the authorities were wrong in the view they took for the reasons given by them and there would therefore be no question of any interference under Art. 32. Further, if a petition under Art. 32 is not maintainable when a provision of law is misconstrued, it could be much less maintainable when there is a mistake of fact though as we have indicated already, it cannot be said in this case that the Collector was wrong in his conclusion on the facts20. The petitioners case, as put forward in this Court, is that even if firm orders were not placed before August 15, 1954, they were entitled to take advantage of the judgment of this Court in Universal Imports Agencys case - (1961) 1 SCR 305  , if they had placed orders after obtaining the patentes in September and had received authorisations and had arranged for foreign exchange to the extent necessary before November 1, 1954. If this is the case of the petitioners, now, and they want to succeed on it, it must be held that the Board by implication negatived it in appeal. This could only be done by a misconstruction of para 6 of S.R.O. 3315, for if that paragraph had been rightly construed, as held by this court in Universal Imports Agencys case, (1961) 1 SCR 305     the goods would not have been confiscated21. Therefore, the position in this. If the petitioners only raise the claim based on the press communique that they had placed firm orders before August 15, 1954, their claim has been negatived on facts and we see no reason to differ from the conclusion of the Collector on the facts. On the other hand, if the petitioners seem to have raised the case which they are now raising before us on the basis of Universal Imports Agencys case - (1961) 1 SCR 305     before the Board, the Board must be deemed to have turned down that claim and that could only be on the basis of the misconstruction of para 6 of S.R.O. 3315. The case therefore that is now put forward on behalf of the petitioners before us would be absolutely analogous to the position in Ujjambais case (AIR 1962 SC 1621  ). In that case the assessing authority acting with jurisdiction upon a misconstruction of a statute which was intra views or a notification properly issued thereunder assessed the tax and it was held that such an assessment cannot be impugned as repugnant to Art. 19(1)(f) and (g) on the sole ground that it was based on a misconstruction of a provision of the Act and the validity of such an order cannot be questioned in a petition under Art. 32. In the present case, a similar quasi-judicial authority i.e. the Board acting judicially with its jurisdiction must be deemed to have turned down by implication the contention raised on the basis of para 6 of S.R.O. 3315 by the petitioners before it and this could only be done on the misconstruction of that paragraph in view of the decision in Universal imports Agencys case, (1961) 1 SCR 305.   The petitioners however cannot question the validity of those orders by petition under Art. 32 of the Constitution, for the Act under which the orders were passed read with S.R.O. 3315 is not assailed as ultra views and the only ground on which it is said that a fundamental right has been violated is that there has been by implication a misconstruction of para 6 of S.R.O. 3315 by the Board. In that view the decision in Ujjambais case, (AIR 1962 SC 1921) will apply with full force to the present petitions.