D.N. Sinha, J. -
(1.) The facts in this case are shortly as follows : The petitioner (hereinafter referred to as "the company") carries on business, inter alia, as importers of split betel nuts. On or about July 24, 1959 the company placed an order for split betel nuts with Messrs. T. N. Sharma Ltd., of Penang, Malaya. On or about July 28, 1959 the order was accepted at the rate of Rs. 26-50 nP. per Cwt., c.i.f. Calcutta. According to the letter of acceptance, the goods were to be shipped by the first available steamer. The goods were actually shipped on or about August 24, 1959 after which the company was apprised of the shipment and cleared the shipping documents. On or about September 8, 1959 the consignment arrived at the Port of Calcutta and bills of entry were duly filled in, as required under the Sea Customs Act. The value declared was Rs. 2531.81 nP. On September 19, 1959 a show-cause notice was issued upon the company by the Assistant Collector for Appraisement, Customs House, Calcutta, a copy whereof is annexed to the petition at p. 10. In that notice it was stated that upon examination of the sample drawn from the consignment imported by the company ex s. s. Nankai Maru from Penang, of split betel nuts, and after comparing them with the value of comparable qualities of the goods imported during the period of despatch and cleared through the Customs House, and on the basis of overseas market reports during the approximate time, it was found that the real value of the goods was at the rate of Rs. 55. 77 nP. per picul c.i.f. Calcutta, whereas it has been declared in the relative documents by the company as Rs. 26.50 nP. per picul c.i.f. Calcutta. Therefore, the goods were undervalued to the extent of Rs. 1840.76 nP. As a result of this misdeclaration of value, the company was directed to show cause why the goods should not be confiscated and a penalty imposed under Section 167, Clause (37) of the Sea Customs Act. The company was further requested to produce a valid import license for the cerrect value of the goods, failing which, it was requited to show cause under Section 167(8) of the Sea Customs Act read with Section 3(2) of the Import and Export (Control) Act, 1947. To this show-Cause notice, the company replied and the reply dated September 28, 1959 is to be found in the annexure to the petition at p. 11. In the explanation, the only point taken was that the betel nuts were purchased at Rs. 26.50 nP. per Cwt. and not picul, sometime in July 1959, but they were shipped some weeks later, because in spite of enquiries made by the company the suppliers postponed the date of shipment alleging that the delay was caused by heavy rains and shipping difficulties. In other words, the only point that was taken was that the value to be considered for the purpose of assessment was the value at the end of July, when the contract for the goods was made. There was no objection on the ground that the company had not been given an opportunity of inspecting the other "comparable qualities" of goods with which the goods imported by the company were compared. Nor was any objection, taken to the effect that the overseas market reports were not to be relied upon, and that no inspection had been granted thereof to the company. Nor was it stated that the alleged value of Rs. 55.77 nP. per picul c.i.f. was not a correct figure for the real value of the goods on the date of importation. On the 19th October, 1959 a second show cause notice was issued. This is practically a repetition of the first notice excepting that the figures relating to the real value were altered. It was stated that the real value had been ascertained to be Rs. 47.25 nP. per Cwt. c.i.f. whereas the value declared by the company was Rs. 26.50 nP. per Cwt. c.i.f. The goods were therefore undervalued to the extent of Rs. 1,982.45nP. The reason why the second notice had to be given has been made clear in the affidavit in opposition. The first notice had some mistakes in it, so far as the figure's are concerned. For example, the real value of the goods was stated to be Rs. 55.77nP. per picul c. i. f. whereas it Was alleged that the company had declared the value of Rs. 26.50 nP. per picul c. i. f. It is the company itself which pointed out in its explanation that the value declared by the company was not Rs. 26.50 nP. per picul but per hundred weight i.e. Cwt. The second notice therefore corrected some figures, but otherwise remained practically the same. To this second notice, the company refused to show cause. In the reply that was given dated 10th November, 1959, the posi-tion taken up was that a show-cause notice had already been issued and explanation had been given and a hearing had taken place. After that, a second notice was not. permissible. Beyond that, the company refused to show cause upou the merits. I might mention here that upon the second show-cause notice having been issued, the company had in the first instance merely asked for a month's time on the 26th October, 1959. On the 3rd November, 1959, notice was again issued, offering to hear the matter on the 26th November, 1959 but as stated above, the company objected to any further hearing. On the 1st December, 1959 an order was passed by the Assistant Collector of Appraisement, a copy whereof is annexed to the petition and marked as Ex. B. In that order, it was stated that on examination of representative samples drawn from the consignment imported by the company from Malaya, and on comparing the value of the goods with that of goods of like kind and qualify imported at the Port at or about the same time and cleared through the Cus-toms House, and on the basis of the overseas market report of the relevant period, the correct c. i. f. price of the goods was estimated at Rs. 47.25 nP. per Cwt. on or about the date of shipment. The importer Company declared the same to be Rs. 26.50 nP. per Cwt. c. i. f. and consequently there was an undervaluation amounting to Rs. 1,982.45 nP. The order proceeds to state as follows:
"The documents indicate that the goods imported are of 'Chalu quality' and the value estimated by this office is based on this quality imported at this port at about the same time and backed by the overseas market reports. The ascertained c. i. f. value is therefore correct. Further, the licence produced does not cover the estimated value of the goods to the extent of Rs. 1,982.45 nP. and since no other licence has been produced to cover this excess, the importation must be considered unauthorised to the extent. Offence under Section 167 (37) (8), Section C. Act is thus clearly established."
(2.) Accordingly, an order was passed confiscating the offending goods valued at Rs. 1,982.45 nP. under 167 (8) of the Sea Customs Act. In lieu of confiscation, the company was given an option under Section 183 of the said Act, to clear the goods on payment of a fine of Rs. 4,600/- within four months from the order.
(3.) It is against this order that this application is directed. The grounds on which a writ of certio-rari can be issued in such a case are two, namely, --there must be either a want of jurisdiction in the Tribunal or there must be an error of law on the face of the proceedings. There is no question in this case of any defect in jurisdiction. Therefore, the petitioner would have to show that there is an error of law on the face of the proceedings, that is to say, the order of the Assistant Collector of Appraisement dated 1-12-1959. I asked Mr. Das who appears on behalf of the petitioner to formulate the errors of law, which according to him appear on the face of the order, and he has formulated them as follows:-
1. That there has been a violation of Section 30 of the Sea Customs Act in as much as: (a) The Assistant Collector of Appraisement has fixed his own value arbitrarily without any basis in accordance with law. (Para 23 (e) of the petition). (b) Time of importation as mentioned in S. 30 means a reasonable time from the time of the placing of the order to the time of the landing of the goods. In this case it is the time when the order was placed. 2. The order of confiscation of the whole goods itself is Contrary to law. (para 23 (j) of the petition). 3. The Customs Authorities meted out unequal treatment to the petitioners in valuing the goods at a much higher rate than other goods contained in the same shipment. (para 23 (f) and (g) of the petition).;