1957 Supreme(SC) 50

SUPREME COURT OF INDIA
25th April 1957
S.R. DAS, C.J.I., IMAM, S.K. DAS, GOVIND MENON AND SARKAR, JJ.
Mehta Ladhubhai Manekchand and Sons and another, Petitioners
Versus
Assistant Collector of Customs and others, Respondents.
C.J Sheth and Co. and another, Petitioners
Versus
Assistant Collector of Customs and others, Respondents.
Kedar Nath Hulashchand and another, Petitioners
Versus
Assistant Collector of Customs and others, Respondents.
Western Trading Corporation and another, Petitioners
Versus
Assistant Collector of Customs and others, Respondents.
Joosub Peermahomed and Co. and another, Petitioners
Versus
Assistant Collector of Customs and others, Respondents.
Humayoun and Co. and another Petitioners
Versus
Assistant Collector of Customs and others, Respondents.
Reva Shankar Bhanji and another, Petitioners
Versus
Assistant Collector of Customs and others, Respondents.
Jamnadas and Brothers and another, Petitioners
Versus
Assistant Collector of Customs and others, Respondents. 734
Kanji Shavji Parekh and another, Petitioners
Versus
Assistant Collector of Customs and others, Respondents.
Gulabdas and Co. and another, Petitioners
Versus
Assistant Collector of Customs and others, Respondents.
Petitions Nos. 234 to 245 of 1956.
Petitions No. 234 of 1956.
Petitions Nos. 235, 236 & 240 of 1956.
Petition No. 237 of 1956.
Petition No. 238 of 1956
Petition No. 239 of 1956.
Petition No. 241 of 1956.
Petition No. 242 of 1956
Petition No. 243 of 1956
Petition No. 244 of 1956.
Petition No. 245 of 1956.
Advocates appeared
Mr. N.C. Chatterjee, Senior Advocate, (Mr. S.C. Mazumdar, Advocate, with him), for Petitioners: M/s. R. Ganpathy Iyer, Porus A. Mehta and R.H. Dhebar, Advocates, for Respondents.

Headnote:Article 32-Scope-Provisions of law not challenged a. unconstitutional-Orders made under Sea Customs Act, 1878 and Indian Tariff Act, 1934 challenged as erroneous on merits Application under Art. 32 does not lie.

       The petitioners were established importers of stationery articles and had quota rights for importing stationery items including goods known as "Artists Materials" and described in Appendix 20 at pages 376 and 377 of the Import Trade Control Policy Book for the licensing period July to December 1954. They were given licence to import goods known as "Artists Materials", falling under serial No. 168 (c) of Part IV of the Policy Statement for the period July to December, 1954. Item 168 of the said statement related to "articles made of paper and paper machine stationery including drawing and copy books, etc." Sub-item (c) related to "other articles" under the same item. A fuller description of "Artists Materials" was given in Appendix XX referred to above. Item 11 of the said Appendix was Crayons.

       Before the issue of the licence, the petitioners had in the middle of June 1954 arranged with Messrs. Crystal Company, local agents and representatives of Messrs. Lyra Lead Pencil Company, Nuremberg, West Germany, for the purchase of Lyra brand crayons. On the 14th June 1954, the petitioners wrote to the Assistant Collector of Customs for Appraisement, Calcutta, enclosing a carton of Lyra brand crayons and enquiring as to the proper customs classification of the said crayons. On 3rd July 1954 they received a reply from him to the effect that Lyra brand crayons were classifiable under item No. 45(a) of the Indian Customs Tarriff. A foot note, however, was added to the letter which stated that the classification was provisional and was liable to revision in the light of examination of the goods at the time of importation. When the goods arrived at the port, these were classified under item No. 45(4) under which the duty was more than under item No. 45(a). The petitioners appealed against this order but it was dismissed by the Central Board of Revenue. Thereafter, the petitioners filed writ applications under Art. 32 challenging the validity of the said orders and praying for quashing the said orders and also for directing the Customs authorities to deliver the goods to the petitioners on payment of duty under item 45(a) of the Indian Customs Tariffs. The validity of the said orders was challenged on four main grounds: (1) The order made by the Assistant Collector of Customs on the Bill of Entry was passed on the strength of another order made by the Collector in File No. S. 6-140/55A without hearing the petitioners and therefore the orders were passed in violation of the principles of natural justice; (2) The assumption of the respondents that Lyra brand crayons were not crayons at all but were coloured pencils is manifestly erroneous, as if it was so the licence which was granted to the petitioners on 4th August 1954 for importing crayons was not a valid licence for importing the goods in question but the Customs authorities had accepted the licence as a good licence; (3) the right of the petitioners under clauses (f) and (g) of Art. 19(1) of the Constitution, namely to hold their property and to carryon a trade, had been violated by reason of the orders in question; and (4) the Customs authorities had assessed duty on similar goods under item 45(a) of the Indian Customs Tariff, and therefore they had meted out unequal treatment to the petitioners.

       Held (dismissing the applications) : (1) 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 arise at all.

       If the provisions 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. Application under Art. 32 of the Constitution does not lie.

       (2) 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 a crayon, a distinction which must require an investigation into disputed facts and materials.