Judgment

KRISHNA IYER, J :- The respondent imported Auto Cycle Pedals under guise of motor vehicle parts for which he had secured the relevant licence. These two articles are different from the point of view of the law controlling imports. As laid down in Ganga Setty s case, AIR 1963 SC 1319 by this Court, it is primarily for the Import Control Authority to determine the head or entry under which any particular commodity falls. Of course, if a construction adopted by the authority regarding the concerned entry were perverse, or grossly irrational, then the court could and would undoubtedly interfere. In the present case the High Court has held that the view of the Customs Officials could not be considered perverse and has declined to set aside the impugned order on that score.

2. Even at this stage it is appropriate to quote the order under challenge which runs:

"M/s. The Security and Finance Ltd. Delhi imported from U. K. the above-mentioned goods for which they did not possess a valid Import licence issued under Serial No. 301/Pt. IV of Import Trade Control Schedule. The importation was therefore considered as unauthorised. The importers were therefore in this Custom Memo Number S24C-1276/55A dated 30-9-55 called upon to show cause why the goods should not be confiscated and penal action taken under Sec. 167 (8) Sea Customs Act read with Section 3 (2) of the Imports & Exports (Control) Act. In reply to the said show cause Memo, the Clearing Agents of the importers produced a licence for Motor Vehicles parts, and claimed release of the goods against the said licence. They further stated that similar consignment has been released in the past against similar licence. Furthermore, no public Notice has been issued to the effect that Auto Cycle Pedals will not be allowed clearance against Motor Vehicle Parts licence. The arguments so advanced are not acceptable. The importers did not avail of the personal hearing offered to them in the said show cause memo.

ORDER

The importation of the above goods without proper licence is prohibited under Sections 3 (2) and 4 of the Imports & Exports (Control) Act of 1947 and Notification issued thereunder. I accordingly confiscate the goods under Section 167 (8) Sea Customs Act. In lieu of confiscation I gave an option under S. 183 ibid to the importers to clear the goods on payment of a fine of Rs. 22,600/- (rupees twenty two thousand six hundred only), Customs duty and other charges as leviable on the goods will have to be paid in addition before these could be cleared out of customs control.

Dated 14-11-55.

sd/

Dy. Collector of Customs"

Even so, the Court quashed the latter limb of the order under challenge which had imposed penalty in lieu of confiscation and, on top of it, directed payment of the import duty ordinarily leviable for the auto cycle Pedals imported.

3. The only ground which led to this fatal consequence was that the authorities acting under Section 183 of the Sea Customs Act, 1878 (Act VIII of 1878) (for short the Act), had no further power to direct the importer-petitioner i. e. the respondent, to pay excess duty which represents the difference between what is leviable for motor vehicles spares and auto cycle pedals. Aggrieved by this view of the limitation on the powers of the Collector of Customs the appellant, i. e. the Union of India, has come up this Court, after securing special leave to appeal. The respondent was not represented by counsel and, since the point involved was one of law and the amount involved not inconsiderable, we requested shri Javali, Advocate, to serve as amicus curiae. He has argued the case with ability and we record our appreciation of his services to the Court. Indeed, but for his close scrutiny of the order of the Deputy Collector of Customs we would not have perceived the mix-up and other defects he highlighted in his submissions.

4. We have already stated that a fine, in lieu of confiscation had been imposed by the Collector of Customs. This he did, und