- (1.) This is an application under Article 226 of the Constitution for Writs in the nature of Mandamus, Certiorari and Prohibition for direction on the respondents as to why they should not forbear from giving effect to the orders or decisions dated the 9th May 1950 and the 16th of June 1950 and also for quashing or cancellation of the said orders or decisions.
(2.) The petitioner carries on business at 23, Amratolla Lane, Calcutta. The petitioner was permitted by the Licensing authority for Import Trade Controller, Government of India, to import spindle oil from United States of America. The petitioner negotiated with Bunge Corporation, 42, Broadway, New York, and entered into a contract on 22nd of November, 1948, for purchase of 1000 drums of spindle oil. A letter of credit was opened through Netherlands India Commercial Bank, Calcutta, in respect of the said transactions. On the 31st of December, 1948, Bunge Corporation, New York, shipped 1000 new steel drums of spindle oil and consigned the same in the name of the said Netherlands Bank, Calcutta. Along with the said consignment a set of Bill of Ladings giving full description of 1000 drums of spindle oil with viscosity 30/40, a certificate of quality stating that the oil is warranted as lubricating oil and guaranteed to conform to the specification given therein showing the viscosity at 10 F 30/40 flash point 205/215 of minimum, and also a certificate of origin by New Orleans Association of Commerce, were all sent to the said Bank. The goods arrived at the Port of Calcutta in February 1949. The petitioner through its clearing agents, Messers J. C. Bose and Sons submitted a bill of entry on the 3rd of March 1949 in the Import Department of the Customs. On the 8th March, 1949, a letter of guarantee was executed by the petitioner to its Bankers whereby in consideration of being allowed to take immediate delivery of the goods they agreed to pay the difference between the duty charged at 0-2-6 per Imperial gallon and which will be leviable if it is decided by the Customs authorities to assess the oil at a higher rate. On the 10th of March the Bill of Entry in duplicate along with the invoice and letter of guarantee were filed by the petitioner in the Appraisement Department. On the 16th of March, 1949, the bill of entry was examined and classified and duty was paid at the declared rate of 0-2-6 per Imperial gallon. On the 17th of March 1949 samples were drawn in the presence of the clearing agents of the petitioner and certain Customs officials and were sealed in their presence and were sent to the Chemical Analyst for test and on the 18th of March 1949, the goods were allowed to be cleared. It appears thereafter on the 6th of July 1949, the Chemical Examiner reported upon test that the sample was a mineral oil having a flash point of 200 F and specific of .867 at 91 F and that it is unsuitable for use as an illuminant in wick lamps and the flash point should be above 200 F to qualify its use as a lubricating oil. In September 1949 the remnants of the samples were sent to the Chief Chemist of the Government of India for re-test at the Central Laboratory at New Delhi. As a result of such re-test the Chief Chemist found that the flash point was between 190 F and 192 F and the oil was found unsuitable as an illuminant. On the 9th of May 1950 the respondent No. 2 who is the Assistant Collector of Customs wrote to the petitioner intimating that on chemical analysis it had been found that the oil in question was not lubricating oil classifiable for levy of duty under item 27(8) of the Indian Customs Tariff and had flash point below 200 F and it was decided to assess the oil under item 27(3) as mineral oil not otherwise specified. It was further pointed out in that letter that there was a misdeclaration in the bill of entry and the petitioner was called upon to show cause why the goods should not be confiscated and a penalty imposed under Section 167(37) and under Section 167(8) of the Sea Customs Act. By the said letter the petitioner was also called upon to produce all corroborative evidence in support of the petitioner's explanation at an early date.
(3.) On the 16th of May 1950 Messrs. S. K. Sawday and Co. replied to the said letter on behalf of the petitioner stating that the petitioner had already filed all the original papers, viz., the letter of credit, invoice, certificate of quality, the contract, etc., with the Customs Authorities. It was further stated in letter that before the petitioner could show further cause they would be extremely obliged if a copy of the chemical analysis could be sent to them for ascertaining how the Customs Authorities had come to the findings that the oil in question was not lubricating oil at all but mineral oil not otherwise specified and it was further requested in the said letter that the petitioner might be given a personal hearing at the convenience of the Customs Authorities before any final order was passed.;