A. V. VENKATESWARAN, COLLECTOR OF CUSTOMS, BOMBAY versus RAMCHAND SOBHRAJ WADHWANI AND ANOTHER

Citation: [1962] 1 S.C.R. 753 · Decided: 04-03-1961 · Supreme Court of India · Bench: P.B. GAJENDRAGADKAR · Disposal: Dismissed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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I S.C.R. SUPREME COURT REPORTS 
753 
A. V. VNNKATESWARAN, COLLECTOR OF 
CUSTOMS, BOMBAY 
v. 
RAMOHAND SOBHRAJ WADHW ANI 
AND ANOTHER 
(P. B. GAJENDRAGADKAR, A. K. SARKAR, 
K. N. WANOHOO, K. C. DAS GUPTA and 
N. RAJAGOPALA AYYANGAR, JJ.) 
Customs Duties-Fountain pens with nibs and caps plated with 
gold-Rate of duty-Indian Tariff Act, I934 (32 of r934), Sch. I, 
Items 45(3), 6r(8). 
Writ-Principles governing issue of-Alternative remedy time-
barred-Application for writ, if lies-Constitution of India, Art. 
226. 
Under a licence granted for the import of fouutain pens at 
not less than Rs. 25 C.l.F. value, the respondent imported She-
affer pens from Australia, which had nibs which were gold 
plated and also caps and clips of similar composition. The im-
ported goods were assessed to duty by the customs authorities 
under item 61(8) of the First Schedule to the Indian Tariff Act, 
1934, dealing with "Articles, other than cutlery and surgical 
instruments, plated with gold or silver" which provided for a 
duty of 78! per cent. ad valorem, while the respondent claimed 
that the goods fell within item 45(3) which related to the article 
described as "Fountain pens, complete", the rate of duty being 30 
per cent. ad valorem. Section 191 of the Sea Customs Act, 1878, 
enabled any person aggrieved by an order ·of the Collector of 
Customs to file a revision to the Central Government, but the 
respondent, without resorting to this remedy filed a writ appli-
cation in the High Court of Bombay under Art. 226 of the Con-
stitution of India to quash the imposition of the duty at the 
higher rate and to direct the release of the goods on payment of 
duty at 30 per cent. The Single Judge who disposed of the 
application took the view that fountain pens did not cease to be 
fountain pens though they contained parts which were plated 
with gold, that so long as they were "Fountain pens, complete" 
only duty under item 45(3) could be levied and that, in the con-
text of the items in the Tariff Schedule, it was not reasonably 
possible for any person to take a contrary view. Accordingly, 
the customs authorities were restrained from enforcing payment 
of any duty higher than 30 per cent. On appeal, the Appellate 
Bench of the High Court agreed with the interpretation of the 
tariff items and held that, tho.ugh it was not the practice to 
entertain writ petitions by parties who had not exhausted their 
statutory remedies, as the remedy of applying in revision to the 
95 
r961 
April 4. 
754 
StJl>REM:E COURT RE:POR't'S 
[1962] 
z96z 
Central Government had become time-barred bv the date of 
hearing of the appeal, it would not interfere with" the order of 
A. V. 
the Single Judge. 
Venkateswaran, 
Held, that the High Court was in error in its vie\v that 
Collector 01 
though the respondent had failed to exercise his statutory 
Customs, Bombay remedy, the fact that it had become time-barred at the date of 
v. 
the hearing of the appeal against the order in the petition under 
Ramchand Sobhraj Art. 226, was a good ground for the Court to exercise its dis-
Wadhwani 
cretion in granting the relief prayed for by the respondent in 
his petition. 
Held, further (Sarkar, J., dissenting): (1) that the consign-
ment imported by the respondent was liable only to a duty of 
30 per cent. under item45(3) in the First Schedule to the Indian 
Tariff Act, 1934, and that the tariff items in the Schedule were 
not reasonably capable of any other construction. 
(2) that as in the present case the levy of the duty under 
entry 61(8) was manifestly erroneous, and the Central Board 
of Revenue had issued a ruling to the effect that fountain pens 
with nibs or caps which were gold-plated fell with entry 6r(8), 
it could not be said that the High Court had exercised its dis-
cretion improperly in entertaining the writ· application so as 
to justify interference in an appeal under Art. 136 of the Con-
stitution. 
Per Gajendragadkar, Wanchoo, Das Gupta and Rajagopala 
Ayyangar, JJ.-The rule that·a party who applies for the issue 
of a high prerogative writ should, before he approaches the 
court, have exhausted other remedies open to him under the 
law, is not one which bars the jurisdiction of the Court to enter-
tain the petition or to deal with it, but is rather a rule which 
courts have laid down for the exercise of their discretion. 
Union of India v. T. R. Varma, [1958] S.C.R. 499 and The 
State of Uttar Pradesh v. Mohammad Nooh

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