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HIGH COURT OF CALCUTTA
DAS, GUPTA, LAHIRI, BOSE, JJ.
East India Commercial Ltd. - Appellant
Versus
Collector Of Customs - Respondent
Decided on : July 31, 1959
ARTICLE 226 - JURISDICTION - WRIT - CENTRAL BOARD OF REVENUE - CUSTOMS OFFICER - CONFIRMATION OF ORDER - MERGER OF ORDERS - OPERATIVE ORDER - WRIT AGAINST ORIGINAL AUTHORITY - SEA CUSTOMS ACT, 1878, SECTIONS 188, 189.
Fact of the Case:
The petitioner, East India Commercial Company Ltd., imported 2000 drums of Mineral Oil, out of which 50 drums were confiscated by the Collector of Customs, Calcutta, under section 167 clause 8 and section 37 of the Sea Customs Act. A personal penalty of Rs. 61,000/- was also imposed on the company. The company appealed to the Central Board of Revenue under section 188 of the Act, which confirmed the order of the Collector of Customs. The company then filed an application under Article 226 of the Constitution for a writ of certiorari, prohibition, and mandamus against the Collector of Customs and the Central Board of Revenue, challenging the orders of confiscation and penalty.
Finding of the Court:
1. The Court held that it had no jurisdiction to issue a writ or order under Article 226 of the Constitution to the Central Board of Revenue, which had its office outside the jurisdiction of the Court. 2. The Court further held that, despite the lack of jurisdiction over the Central Board of Revenue, it could still issue a writ to the Collector of Customs, who had made the original order of confiscation and penalty. 3. The Court reasoned that the order of the Central Board of Revenue confirming the order of the Collector of Customs did not merge the original order into the appellate order. Therefore, the original order remained operative, and the Court could exercise its jurisdiction under Article 226 in respect of that order.
Issues: 1. Whether the Court had jurisdiction to issue a writ or order under Article 226 of the Constitution to the Central Board of Revenue, which had its office outside the jurisdiction of the Court. 2. Whether, despite the lack of jurisdiction over the Central Board of Revenue, the Court could still issue a writ to the Collector of Customs, who had made the original order of confiscation and penalty.
Ratio Decidendi: 1. The Court relied on the Supreme Court decision in Election Commission India V. Saka Venkata Rao, which held that a High Court could not issue a writ to a Tribunal or authority permanently located and normally carrying on its activities outside the jurisdiction of the High Court. 2. The Court distinguished the present case from cases where the original order had merged into the appellate order, holding that the order of the Central Board of Revenue confirming the order of the Collector of Customs did not merge the original order. 3. The Court relied on the Supreme Court decision in The State of Uttar Pradesh v. Mohammad Nooh, which held that an original order passed by a Court of first instance or an inferior tribunal is not merged in the order of the superior tribunal when that tribunal merely confirms the original order and dismisses the appeal or revision.
Final Decision: The Court held that it had no jurisdiction to issue a writ or order under Article 226 of the Constitution to the Central Board of Revenue, but it could still issue a writ to the Collector of Customs in respect of the original order of confiscation and penalty. The Court remitted the application back to the learned Judge who made the reference for disposal on the merits.
1. ON the 20th September 1950 the Collector of Customs, who has his office at Customs House, Calcutta, made an order directing confiscation of 50 drums of Mineral Oil out of 2000 drums of Mineral Oil which had been imported by the petitioner, the East India Commercial Company Ltd., and also imposed a personal penalty of Rs. 61,000/- on the said company under section 167 clause 8 and section 37 of the Sea Customs Act. Aggrieved by this order the company appealed from it to the Central Board of Revenue under the provisions of section 188 of the Sea Customs Act. On the 8th of April 1952 the Central Board of Revenue made the following order in disposing of the appeal:-
"at the request of the appellants the Board had arranged for a re-test of samples of the oil by the Chief Chemist, Central Revenue. The Chief Chemist on examination of the remnant samples has now confirmed the findings in the test report of the Calcutta Customs House Laboratory. The Board has carefully considered all the pleas put forward on behalf of the appellant but sees no reason to interfere with the order passed by the Collector of Customs, Calcutta. "
2. THEREUPON the present application for relief under Article 226 of the Constitution was made to this Court by the Company. The Collector of Customs having his office at Customs House, Calcutta was made the first respondent in this application; E. S. Krishnamurthy. Member, Central Board of Revenue having his office at Delhi, who had made the order mentioned above on the 8th April 1952, was made the second respondent and the Union of India was made the third respondent. In this application the company prayed for an order "for the issue of writ of certiorari against the first and second respondents calling upon them to produce all records resulting in the. decision and order dated the 20th September by the first respondent and the order dated 8th April 1952 of the second respondent; an order for the issue of writ of prohibition prohibiting the respondent from taking steps in connection with the goods and giving effect to the recovery of the penalty and extra duty imposed; a writ in the nature of mandamus requiring the first and second respondents to cancel or forbear from giving effect to the two orders mentioned; a direction that no penalty was realizable from the petitioner and that all the three respondents be directed to refund the penalty of Rs. 61,000/- deposited by the petitioner under the provisions of section 189 of the Sea Customs Act and the return to the petitioner the 50 drums detained by the Customs authorities. "A rule was issued on the respondents why the writs should not be issued. When the rule came up for hearing a point was raised whether any writ or order under Article 226 of the Constitution could issue against the second respondent, the Central Board of Revenue.
Which has its permanent office outside the jurisdiction of this Court. The further question appears to have been raised that if no such writ or order could issue against the second respondent, none could issue against the first respondent, the Collector of Customs, Calcutta. On the prayer of the parties the learned Judge has made thereon a report under Chapter V, Rules 2 and 3 of the Original Side Rules saying that this matter can be more advantageously heard by a Bench of two or more Judges. This is the matter now for cur consideration.
3. AT first sight it appears that the only question which in the opinion of the learned Judge made it necessary that the matters should be heard by a larger Bench was the question "whether this Court has jurisdiction to make an order under Article 226 of the Constitution upon a Tribunal situated outside the jurisdiction of this Court but which exercises appellate functions in respect of a cause of action arising within the jurisdiction and an order made within the jurisdiction and where the party concerned resides within the jurisdiction. " Obviously, a question arises for a decision whether a
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