Sinha, J. - (1.) The petitioner before me is Messrs. Calcutta Chemical Company Ltd, which as its name signifies, is a public limited company carrying on business as manufacturer of chemical and pharmaceutical products. It is stated in the petition that for over 30 years the petitioner has been using Wood-Naptha as a chemical solvent in connection with the petitioner's business of manufacture of chemicals and pharmaceutical products. On the 25-5-1951 the petitioner was granted by the Import Trade Controller, a license for the purpose of importing divers chemicals including Wood-Naptha. In fact, the said license is in renewal of an earlier license dated 7-12-1950. It appears that sometime in January 1951 an order was placedwith Messrs. Bayer and Company of Germany, a famous manufacturer of chemicals, for a quantity of Wood-Naptha. The correspondence makes it clear that what was indented was Wood-Naptha, "to be used as a solvent under the trade name "Calsol" (solvent) which was the factory name of Wood Naptha used by the petitioner company. It is against this order that 7 drums of Wood Naptha, were imported from Germany per S. S. "Ceram" and forwhich customs duty had already been paid. It was found that there had been a short levy. A demand was therefore made under Section 39 of the Sea Customs Act 1878 for the deficiency amounting to Rs. 48457/3/- which should be paid within 15 days from the receipt of the notice. The petitioner company thereupon made an objection on 21-1-1952 maintaining that the imported goods being a solvent used in industrial and research purposes and unfit for human consumption had been correctly assessed at 37.8 per cent, at the time of clearance. It was alleged that there was no short levy. On 5-2-1952 another communication was received from the Assistant Collector stating that on chemical test of samples drawn from the consignment of "Calsol' (solvent) valued at Rs. 1229/- C. I. F. Imported per S. S Ceram from Germany, it appeared that the article in question was Methyl-Alcohol which was correctly assessable to duty under item 22 (4) (b) Indian Customs Tariff, at the rate of Rs. 95/10/-per I. G. whereas the petitioner, company had declared the same as a chemical, with the result that the article had been assessed under item 28 of the Tariff Schedule, at the rate of 37.8 per cent, ad valorem. The petitioner was called upon to pay the deficiency and also to show cause why a penalty should not be imposed under Section 167(8) of me Sea Customs Act for misdeclaration of goods. Cause was again shown. The petitioner again took the objection that the article in question was impure Methyl-Alcohol absolutely unfit for human consumption and as such was not assessable to duty under item 22(4) (b) of the Indian Tariff Schedule. The petitioner company offered to have the drums, except one denatured by a suitable chemical. On 9-4-1952 the Assistant Collector intimated to the petitioner that penal action under Section 167(37) of the Sea Customs Act has been waived as a special case but the extra duty of Rs. 48,457/3/- must be paid within a fortnight. It was pointed out that if the petitioner company felt aggrieved, it may prefer an appeal to the Collector after depositing the extra duty. An appeal was preferred but it is stated that it was preferred after the time provided for under the Sea Customs Act. I shall refer to this aspect later on. In or about 14-8-1952 an intimation was given to the petitioner that it was not permissible to denature the goods after they have left the Custom's custody but as a special case the authorities were agreeable to have the goods denatured after a test was made to show as to whether the goods were the same. To this the answer was that three drums had already been used up and the remaining four drums could be tested. Samples were drawn from the remaining four drums. However, until November 1952 the result of the test was not communicated to the petitioner. On 23-12-1953 the Assistant Collector of Appraisement wrote to the petitioner's lawyer that the samples tested show that the four drums contained impure Methyl-Alcohol and so it was not possible to denature the same by acetone. However, the question of denaturalisation, it was stated, had been referred to the Board. The appeal was decided on 6-5-1954. The Collector of Customs held that, the decision of the Assistant Collector was dated 9-4-1952 but the appeal was received on 30-7-1952 after the expiry of the prescribed time limit. It was also pointed out that under the provisions of Section 189 of the Sea Customs Act, the entire duty that had been assessed had to be deposited before an appeal could be heard, but no such deposit had been made. On these two grounds the appeal was dismissed. I must mention here that in their petition of appeal, the petitioner company, inter alia, stated that the value of the goods imported was only Rs. 1229/- and it was very hard for the petitioner to deposit the large amount of Rs. 48,457/3/- immediately before the hearing of the appeal and requested that the payment may be waived as a special case. Against the order of the Collector of Customs, a revision petition was made to the Government of India but by its order dated 22-3-1953 the Government of India declined to interfere.
(2.) This Rule was issued on 14-6-1955 calling upon the opposite parties to show cause why a Writ in the nature of Certiorari should not issue quashing and/or setting aside the decision or order to levy extra or additional duty complained of in the petition, and/or why a Writ in the nature of Mandamus should not issue directing the opposite parties to forbear from giving effect to the said decision and for other reliefs.
(3.) The first point that is taken by the respondent is in the nature of a preliminary objections namely, that the petitioner had an alternative remedy but it did not avail itself of it and therefore this application is incompetent. It is not accurate to say that the petitioner company did not avail itself of the alternative remedy. It did avail itself of the alternative remedy but the appeal was dismissed on two grounds, namely, limitation and failure to deposit the entire sum demanded under Section 189 of the Sea Customs Act. Under that section, where a decision or order appealed against relates to any duty or penalty, then pending the appeal, the appellant must deposit in the hands of the Customs Collector the whole amount demanded from him. Now if the matter was dismissed only on the ground that there was an alternative remedy but the petitioner had allowed it to become barred, that would be another matter. But in this matter, whether it was barred by limitation or not, an appeal could only have been filed after depositing the entire amount. It will be remembered that the value of the goods was in the neighbourhood of Rs. 1000/- whereas the amount of duty demanded was in the neighbourhood of half a lac of rupees, and the petitioner company made it clear in their petition of appeal that it was not in a position to make the deposit. In my opinion, the alternative remedy was not adequate, as has been laid down in the case of State of U. P. v. Mohammad Nooh, (1958) SCA 73: (AIR 1958 SC 86) (A). It was held there that where a person has to put in the entire amount as a condition precedent for filing an appeal, or for maintaining it, an appeal cannot be said to be an adequate alternative remedy. In view of this I do not go into the disputed question as to whether an appeal was filed in time or not. As I have mentioned above, even if the appeal was filed in time, it was bound to be thrown out on the ground of the absence of the required deposit under Section 189.;