Case: Gulabdas &amp; Company &amp; Anr Vs. Assistant Collector Of Customs &amp; Ors

treatment. It may be stated here that, prior to 1st March 1951, coloured and copying pencils were included under the head stationery not otherwise specified in item 45 (4) of the Indian Customs Tariff. By the Indian Tariff (Amendment) Act, 1951, (Act XIII of 1951) item 45 (a) was inserted and this specifically related to coloured and copying pencils. The duty then imposed was protective duty of 37 1/3 per cent. ad valorem. By the Indian Finance Act XIV of 1953, the duty was enhanced to 66 2/3 per cent. ad valorem. Then, in October, 1954, came the Indian Tariff (Second Amendment) Act, 1954, by which the duty imposed under item 45 (4) with regard to coloured and copying pencils was a revenue duty of two annas for every length of 7 1/2 inches or part thereof or 66 2/3 per cent. ad valorem, whichever is higher. Whatever difficulty there might have been at an earlier stage, there was really no. difficulty in assessing duty on coloured pencils since the amendment of 1951, which inserted items 45 (4) in the First scheduled to the Indian Tariff Act, 1934 (XXXII of 1934). 8. The petitioners relied on the letter dated 3rd July 1954, in which the Assistant Collector of Customs said that Lyra brand crayons were classifiable under item 45 (a). This letter, however, itself stated that the classification was provisional and liable to revision in the light of examination of the goods at the time of importation. Moreover, the tentative classification made by the Assistant Collector, of Customs was not binding on the Collector and we do not think that the petitioners can found any claim on the ground of estoppel. In fairness to learned counsel for the petitioners we must add that no. such claim was made before us. Learned counsel for the petitioners referred us to certain observations in Chapter 1 of a handbook of rules and procedure, 1952, entitled Import Trade Control. The observations are these : "The import policy in respect of different items is announced with reference to the serial numbers under each part of the Import Trade Control Schedule. It is therefore necessary for the intending importer to ascertain under what part and which serial number of the I.T.C. Schedule the article which he wishes to import falls. An alphabetical list of articles is included in Appendix X to enable importers to ascertain readily the I.T.C. classification of any particular item. It will be noticed that in the I.T.C. Schedule (except in Part VI) against each serial number the corresponding Customs classification under the First Schedule to the Indian Tariff Act, 1934 has been quoted. This is intended to help importers in ascertaining the correct classification in doubtful cases by reference to the Customs classification with which as a rule they would already be familiar by virtue of their past imports. It is some what important for the importer to know the cornet I.T.C classification for any item because only then can he ascertain the appropriate authority to whom he should apply for an import licence and also judge for himself whether or not a licence licence is likely to be granted to him." We do not think that the aforesaid observations which relate to licensing policy have any bearing on the question at issue, namely, whether Lyra brand crayons should be assessed under item 45(a) as stationery not otherwise specified or item 45(4), as coloured pencils. 9. For the reasons given above, we do not think that there is any substance in the contention urged on behalf of the petitioners that by the impugned orders there has been a violation of their fundamental right under Art. 19 or that there has been unequal treatment of the petitioners by the Customs authorities. On this short ground only the applications are liable to be dismissed. 10. With regard to the first two grounds urged on behalf of the petitioners it is abundantly clear that the petitioners have had a full hearing before two successive Collectors of Customs, Calcutta and their grievance as to the violation of the principles of natural justice is totally devoid of merit. From the affidavit field on behalf of the respondents, it appears that between 19th January 1955, and 16th February 1955, the petitioners became aware of the decision of the Collector, through the Customs officers, that the assessment was made under item 45(4). On 16th February 1955, the petitioners made a representation with regard to the distinction between crayons and coloured pencils. The representation was considered by the Collector of Customs. The petitioners were then given a personal hearing by the Collector on 26th February 1955, and the order of assessment was confirmed. On 6th April 1953, the petitioners asked for an interview with the successor in office of the previous Collector, and again the petitioners were heard on 12th April 1955. Thereafter, on 26th April 1955, the petitioners were told that the order of assessment could not be revised and their proper remedy was to prefer an appeal to the Central Board of Revenue. The petitioners then preferred an appeal to the Central Board of Revenue. That appeal was also dismissed. In view of these facts and circumstances, it is idle to contend that there has been a violation of the principles of natural justice. 11. The contention that the impugned orders are manifestly erroneous, because crayons have been treated as coloured pencils is not a contention which can be gone into on an application under Art. 32 of the Constitution. It has no. bearing on the question of the enforcement of a fundamental right, nor can the question be decided without first determining what constitutes the distinction between a coloured pencil and as crayon a distinction which must require an investigation into disputed facts and materials. This was a matter for the Constitution authorities to decide, and it is obvious that this Court cannot, on an application under Art. 32 of the Constitution, embark on such an investigation.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 0

Reasoning from the judgment:
0[ds]6. At first sight, the last two grounds stated above apparently seem to involves question of enforcement of fundamental rights, for which purpose the petitioners have the guaranteed right to move this court by appropriate proceedings under Art. 32 of the Constitution. On a closer examination, however, it will appear that there is really no. question of the enforcement of a fundamental right in any of these twelve petitions. What, after all, is the grievance of the petitioners? They do not challenge any of the provisions of the Indian Tariff Act, 1934 (XXXII of 1934) or any of the provisions of the Sea Customs Act, 1878 (VIII of 1878). It is for the Customs authorities to determine under the provisions of the said Acts what duty is payable in respect of certain imported articles. The Customs authorities came to a pursued decision, right or wrong, and the petitioners their remedy by way of an appeal to the Central Board of Revenue. The Central Board of Revenue dismissed the appeal, Unless the provisions relating to the imposition of duty are challenged as unconstitutional or the orders in question are challenged as being in excess of the power given to the Customs authorities and therefore without jurisdiction, it is difficult to see how the question of any fundamental right under Art. 19 (1), cls. (f) and (g), of the Constitution can at all arise. If the provision of law under which the impugned orders have been passed are good provisions and the orders passed are with jurisdiction, whether they be right or wrong on facts, there is really no. question of the infraction of a fundamental right. If a particular decision is erroneous on facts or merits, the proper remedy is by way of an appeal. If the petitioners were aggrieved by the order of the Central Board of Revenue, they had a further remedy by way of an application for revision to the Central Government. The petitioners did not choose to do so nor do they challenge any of the provisions of law under which the impugned orders were made; nor is it contended that the orders were without jurisdiction. All that is really contended is that the orders are erroneous on merits. That surely does not give rise to the violation of any fundamental right under Art. 19 of the ConstitutionThis, in our opinion, completely dispose of the argument as to unequal treatment. It may be stated here that, prior to 1st March 1951, coloured and copying pencils were included under the head stationery not otherwise specified in item 45 (4) of the Indian Customs Tariff. By the Indian Tariff (Amendment) Act, 1951, (Act XIII of 1951) item 45 (a) was inserted and this specifically related to coloured and copying pencils. The duty then imposed was protective duty of 37 1/3 per cent. ad valorem. By the Indian Finance Act XIV of 1953, the duty was enhanced to 66 2/3 per cent. ad valorem. Then, in October, 1954, came the Indian Tariff (Second Amendment) Act, 1954, by which the duty imposed under item 45 (4) with regard to coloured and copying pencils was a revenue duty of two annas for every length of 7 1/2 inches or part thereof or 66 2/3 per cent. ad valorem, whichever is higher. Whatever difficulty there might have been at an earlier stage, there was really no. difficulty in assessing duty on coloured pencils since the amendment of 1951, which inserted items 45 (4) in the First scheduled to the Indian Tariff Act, 1934 (XXXII of 1934)8. The petitioners relied on the letter dated 3rd July 1954, in which the Assistant Collector of Customs said that Lyra brand crayons were classifiable under item 45 (a). This letter, however, itself stated that the classification was provisional and liable to revision in the light of examination of the goods at the time of importation. Moreover, the tentative classification made by the Assistant Collector, of Customs was not binding on the Collector and we do not think that the petitioners can found any claim on the ground of estoppel. In fairness to learned counsel for the petitioners we must add that no. such claim was made before usWe do not think that the aforesaid observations which relate to licensing policy have any bearing on the question at issue, namely, whether Lyra brand crayons should be assessed under item 45(a) as stationery not otherwise specified or item 45(4), as coloured pencils9. For the reasons given above, we do not think that there is any substance in the contention urged on behalf of the petitioners that by the impugned orders there has been a violation of their fundamental right under Art. 19 or that there has been unequal treatment of the petitioners by the Customs authorities. On this short ground only the applications are liable to be dismissed10. With regard to the first two grounds urged on behalf of the petitioners it is abundantly clear that the petitioners have had a full hearing before two successive Collectors of Customs, Calcutta and their grievance as to the violation of the principles of natural justice is totally devoid of merit. From the affidavit field on behalf of the respondents, it appears that between 19th January 1955, and 16th February 1955, the petitioners became aware of the decision of the Collector, through the Customs officers, that the assessment was made under item 45(4). On 16th February 1955, the petitioners made a representation with regard to the distinction between crayons and coloured pencils. The representation was considered by the Collector of Customs. The petitioners were then given a personal hearing by the Collector on 26th February 1955, and the order of assessment was confirmed. On 6th April 1953, the petitioners asked for an interview with the successor in office of the previous Collector, and again the petitioners were heard on 12th April 1955. Thereafter, on 26th April 1955, the petitioners were told that the order of assessment could not be revised and their proper remedy was to prefer an appeal to the Central Board of Revenue. The petitioners then preferred an appeal to the Central Board of Revenue. That appeal was also dismissed. In view of these facts and circumstances, it is idle to contend that there has been a violation of the principles of natural justice11. The contention that the impugned orders are manifestly erroneous, because crayons have been treated as coloured pencils is not a contention which can be gone into on an application under Art. 32 of the Constitution. It has no. bearing on the question of the enforcement of a fundamental right, nor can the question be decided without first determining what constitutes the distinction between a coloured pencil and as crayon a distinction which must require an investigation into disputed facts and materials. This was a matter for the Constitution authorities to decide, and it is obvious that this Court cannot, on an application under Art. 32 of the Constitution, embark on such an investigation.