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1967 Supreme(Goa) 8
Goa High Court
V. S. JETLEY
Gangadhar Narsingdas Agrawal of Margao - Appellant
Versus
Union of India - Respondent
Decided On : 04/03/1967
R.L. Dalal, for Petitioner; S. Baptista assisted by S. Tamba, Govt. Pleader, for Respondents.
The suspension of article 19 of the Constitution during the Emergency removes the fetters created on the legislative and executive powers by article 19.
Headnote:
CUSTOMS ACT, 1962 - SECTION 16 - EXPORT DUTY - DEMAND FOR PAYMENT - MAINTAINABILITY OF WRIT PETITION - PRELIMINARY OBJECTIONS - SUSPENSION OF ARTICLE 19 OF THE CONSTITUTION - PREMATURE PETITION - WANT OF GOOD FAITH AND CANDOUR - AUTHORITY OF LAW - ALTERNATIVE SPECIFIC REMEDIES - DISCRETION OF THE COURT - INTERPRETATION OF SECTION 16 - MAINTAINABILITY OF PETITION - COSTS.
Fact of the Case:
The petitioner, Gangadhar Narsingdas Agrawal, approached the High Court of Bombay with a prayer for a writ of mandamus restraining the respondents, the Union of India and the Assistant Collector of Customs, Marmagoa, from collecting export duty on iron ore and stopping the loading of iron ore on S. S. 'Ardenode'. The petitioner claimed that he had registered a shipping bill for the export of iron ore on 1st August 1966 and an outward entry was granted by the Customs the same day. However, the respondents demanded payment of export duty levied with effect from 2nd August 1966, which the petitioner refused to pay, arguing that it was not payable under section 16(1)(a) of the Customs Act, 1962. The respondents contended that the outward entry was not granted on 1st August 1966 and that the export duty was payable under the proviso to section 16(1)(a).
Finding of the Court:
The High Court of Bombay dismissed the petition on several grounds. Firstly, it held that the petition was not maintainable as article 19 of the Constitution, which guarantees the right to freedom of trade and commerce, was suspended during the Emergency proclaimed by the President under article 352 of the Constitution. Secondly, the Court held that the petition was premature as no formal demand for payment of export duty had been made by the respondents. Thirdly, the Court held that the petition was not made in good faith and candour as the petitioner had omitted to mention certain material facts in the petition. Fourthly, the Court held that the demand for payment of export duty had the authority of law and that the petitioner had alternative specific remedies under the Customs Act, 1962, which he had not exhausted. Lastly, the Court held that the petitioner had not been able to establish that any legal right residing in him had been infringed.
Issues: 1. Whether the petition was maintainable in view of the suspension of article 19 of the Constitution during the Emergency? 2. Whether the petition was premature as no formal demand for payment of export duty had been made? 3. Whether the petition was made in good faith and candour? 4. Whether the demand for payment of export duty had the authority of law? 5. Whether the petitioner had alternative specific remedies under the Customs Act, 1962, which he had not exhausted? 6. Whether the petitioner had been able to establish that any legal right residing in him had been infringed?
Ratio Decidendi: 1. The suspension of article 19 of the Constitution during the Emergency removes the fetters created on the legislative and executive powers by article 19. 2. A mandamus can only direct a specific act to be done or some specific act to be forborne. Where the petition is premature, for instance, when no action contrary to law has yet been taken, or proposed, a writ ordinarily would not lie. 3. An application for mandamus should be made in good faith and not for an indirect purpose. 4. The levy or collection of tax under the scheme of the Customs Act, 1962, has to be by a written order and not by a verbal demand. 5. The proper remedy for correcting an error in the construction of a statute is to proceed by way of an appeal, or, if the error is an error apparent on the face of the record, then by an application under article 226 of the Constitution. 6. A mandamus would lie in cases where there is a specific right and no specific legal remedy for enforcing that right.
Final Decision: The petition was dismissed with costs.
2. The case of the petitioner set out in the petition supported by his affidavit is that on 1st August, 1966 he registered through his agents a shipping bill for the export of 10160 metric of iron ore to Japan and an outward entry was given by the Customs the same day. The steamer S. S. 'Ardenode' entered inside the port of Marmagoa on the morning of 3rd August 1966 and started loading the iron ore. The agents of the petitioner sought clarification from respondent no. 2 as regards the export duty on iron ore levied with effect from 2nd August 1966. According to the petitioner, respondent no. 2 then started demanding from his agents the payment of the export duty so levied. This demand was verbal.
The agents informed the respondent no. 2 that as the shipping bill had been granted an outward entry on 1st August 1966 therefore the export duty levied on 2nd August 1966 is not payable under section 16(1) (a) of the Customs Act, 1962, and consequently the demand by him is not legal. The demand was reiterated. On 8th of August 1966 the petitioner represented to him verbally that pending decision by the higher authorities he should be allowed to execute a bond guaranteeing the payment of the export duty so that loading could be completed. This representation was not accepted but instead the time-limit for payment of the export duty was extended verbally by the respondent no. 2 upto 11.00 a.m. on 9th August 1966 failing which loading was to be stopped. This action, according to the petitioner, constitutes a threat to his fundamental right guaranteed under article 19 (1) (g) of the Constitution. This, in short, is the case of the petitioner.
3. The case of the respondents set out in the counter-affidavit filed by the respondent no. 2 is that the petition is not maintainable in view of suspension of article 19 of the Constitution; that no formal order of demand was made and hence the petition is premature and therefore not maintainable, that the petition contains several incorrect statements to the knowledge of the petitioner and, as such, he is guilty of want of good faith and candour which is expected of him in a writ petition; that no outward entry was given by the Customs on 1st August 1966 as affirmed by the petitioner; that on clarification sought by the agents, they were informed that as the steamer had arrived on 3rd August 1966 (a day after the export duty on iron ore was levied for the first time in Goa) therefore the consignment of iron ore proposed to be exported was liable for export duty under the proviso to section 16 (1) a); that except for this clarification no demand was made requiring the petitioner to pay the export duty that en 8th August 1966 a letter was received from the petitioner that the export duty was not payable; in that letter no reference was made by the petitioner to the demand made; and that before any reply could be given the petitioner rushed to the Court and filed the present petition; that no time-limit was extended orally upto 11.00 a.m. on 9th August 1966 for payment of the export duty, and that although the outward entry application was received on 30th July 1966 and permission granted the same day to ship the consignment of iron ore, the said permission only became operative in terms of the said proviso after the steamer arrived at Marmagoa on 3rd August 1966; that the petitioner is liable to pay the export duty levied with effect from 2nd August 1966; and lastly
