- (1.) This appeal by special leave is against the judgment and order of a Division Bench of the Bombay High Court by which a writ of mandamus or certiorari granted to the respondent was confirmed on appeal preferred by the appellant now before us.
(2.) A few facts are necessary to be stated to understand the matters in controversy and the points raised for our decision. The respondent carries on business in Bombay and he was granted on August 18, 1954, a licence under the Imports and Exports (Control) Act, 1947, for the import of fountain-pens at not less than Rs. 25 C. I. F. value each from soft currency area, up to a defined amount. He placed an order for the import of Sheaffer pens from Australia and a consignment of these was received by air in Bombay in October 1954. The fountain-pens thus imported had nibs which were gold plated and also caps and clips of similar composition. The question in controversy relates to the rate of duty to be charged on these imported pens. The Schedule to the Indian Tariff Act, 1934, has an item numbered 45(3) in relation to the article described as "fountain pens complete", the rate of duty being 30 per cent , ad valorem. It was the case of the respondent that the imported goods fell within this item and were liable to be charged with duty at that rate. The Customs authorities, however, considered that the consignment fell within the description "article plated with gold or silver" being item 61(8) on which duty was payable at 78 3/4 per cent. The Assistant Collector of Customs adjudicated the duty on this latter basis and thereafter the respondent having filed an appeal to the Collector of Customs, the levy was upheld by order dated February 22, 1955.
(3.) Section 191 of the Sea Customs Act enables any person aggrieved by an order of the Collector of Customs to file a revision to the Central Government. The respondent, without resorting to this remedy, filed a writ application in the High Court of Bombay to quash the imposition of the duty at the higher rate (certiorari) and to direct the release of the goods on payment of duty at 30 per cent. (mandamus). The application was resisted by the Collector of Customs, who raised substantially two points : (1) that on the merits the goods imported were "gold-plated articles" notwithstanding their being fountain-pens and that the proper rate of duty was that which had been determined by the Assistant Customs Collector, (2) that the respondent had another remedy open to him, viz., to file a revision to the Central Government and that he was, therefore, disentitled to move the High Court under Art. 226 of the Constitution before availing himself of the remedy specially provided by statute. The writ petition came on for hearing before Justice Tendolkar, who by his order dated July 5, 1955, recorded that on any reasonable construction of the items in the Schedule to the Indian Customs Tariff, fountain-pens did not cease to be fountain-pens because they contained parts which were plated with silver or gold and that so long as they were "fountain-pens complete", subject to any exceptional cases of which this was not one, only duty at 30 per cent. under item 45(3) could be levied. The learned Judge further held that the interpretation that he placed upon item 45(3) in the context of the other entries in the Tariff Schedule can "only be one and it is not reasonably possible for any person to take a contrary view". In other words, the learned Judge was of the opinion that the construction put upon the entry by the Customs authorities was unreasonable or perverse.;