P L D 1955 Sind 361 (PLP)

INAMULLAH, J.--‑These are 19 cases in which a common question of law is involved, and the facts also are similar. In these 19 cases a declaration has been sought that the levy of duty on imported matches at the enhanced rate of Rs. 3‑15‑0. per gross and the consequent recovery by the defendant of excess money was illegal, ultra vires and void. The facts, shortly put, as given in the plaint are these: The plaintiffs in the various cases had imported safety matches under various bills. The Custom authorities at Karachi charged an import duty at the rate of Rs. 3‑15‑0‑per gross instead of Rs. 3‑7 1/5 per gross, which was the rate of duty fixed by the Government of Pakistan under the Tariff Act, 1934. The plaintiffs, therefore, in their various suits contended that they had been made to pay excess amounts. The plaintiffs had also preferred their claim to the Collector of Customs for the same, but it was rejected by him, and ultimately they want in revision to the Finance Ministry, Government of Pakistan, but their revision was dismissed by the said Ministry. The main contention of the plaintiffs in their various suits is that the excess import duty had been charged by the Customs authorities in pursuance of a letter from the Central Board of Revenue dated the 17th of April, 1950 addressed to the Collector of Customs. The contention of the plaintiffs is that the import duty on the match boxes could be increased under section 4 of the Tarrif Act, 1934, which requires that "where the Central Government is satisfied after such inquiry as it thinks necessary that such duty has become ineffective or excessive for the purpose of securing the protec tion intended to be afforted by it to a similar article manufac tured in Pakistan, it may, by notification in the official gezette increase or reduce such duty to such extend as it thinks necessary either generally or in respect of such articles . .. . ." It is alleged that the Central Government had not issued any such notification in any Gazette as required by section 4 of the Tariff Act, 1934, to increase the customs duty on match' boxes. Their contention therefore, is that notifications No. 4 and 5 Central Excise, dated 11th and 13th May, 1946 respec tively issued by the Government of India were still operative, according to which the import duty was only Rs. 3‑0‑7 1/5 per gross. It is contended that the authorities in Pakistan had been realising the duty at the same rate, viz., Rs. 3‑0‑7 1/5 per gross till the letter referred to dated 17th April, 1950 was issued by the Central Board of Revenue to the Collector of Customs. All these 19 cases have been filed by various persons who had imported match boxes. The contention of these plaintiffs is common that the letter by the Central Board of Revenue cannot have the effect of a notification under section 4 of the Tariff Act, 1934, which requires that an increase or reduction should be notified by the Central Government and should be published in the Official Gazette. The letter dated 14th April, 1950 is neither a notification of the Central Government, nor has it been published in the Official Gazette. The following issue has been tried as a preliminary issue in all these 19 cases:‑ "Whether the suit is barred by the provisions of Section 226 of the Constitution Act, 1935 ?" Sub‑clause (1) of section 226 of the Government of India Act runs as under :‑ "Until otherwise provided by Act of the appropriate legislature, no High Court shall have any original jurisdic tion in any matter concerning the revenue, or concerning any act ordered or done in the collection thereof according to the usage and practice of the country or the law for the time being in force." The contention of Mr. Nasiruddin, the learned Advocate who appeared for the Federation of Pakistan is that the question of the realisation of import duty is a question relating to the revenues of Pakistan, and therefore this court could not try the same in view of section 226 of the Govern ment of India Act, 1935. He contended that, as would appear from section 136 of the Government of India Act, the expression "revenues of the Federation" includes all revenues and public money raised or received by the Federation Duty imposed on imported goods also, he contended, was public money raised or received by the Federation. In fact, it has not been contended before me that the imposition of import duty as such is not "revenues within the meaning of the Government of India Act, 1935. "Revenue" is also defined in Wharton's Law of Lexicon as follows :‑ "Income, annual profit received from land or other funds ; also money at the disposal of the Crown, i.e., the executive. The chief sources are (1) Crown property, surrendered to the nation ; (2) texation income tax, death duties, customs and excise, stamp duties ; (3) certain managed enterprises, such as the Post Office and lands, woods and Forests and miscellaneous holdings such as shares in the Suez Canal, and other profits or fiscal prerogatives of the Crown." It would appear from the above 'definition of "revenue given in Wharton's Law of Laxicon that the duty imposed on imported goods would also be revenue. The contention of Mr. Castellino and Mr. Jan Muhammad, who appeared for the plaintiffs in the cases before me, was three‑fold. (1) Once the revenue is realised, it ceased to be revenue ; (2) The action of the Central Board of Revenue being absurd, this Court has jurisdiction and the provisions of section 226 of the Government of India Act would not apply ; (3) This Court has jurisdiction to determine whether the act of the Central Board of Revenue was in accordance with the usage and practice of the Country or the law for the time being in force. Section 226 of the Government of India Act, 1935, it was contended, did not bar the jurisdiction of this Court from considering whether the act of the Central Board of Revenue was in accordance with the usage and practice of the country or the law for the time being in force. I will consider these questions separately. So far as the first question was concerned, it was contend ed by the learned Advocate for the plaintiffs that, in the suits filed by them, certain money by way of duty on imported goods had already been realised by the Government. The money has now passed on to the treasury of the Government. It was contended that the question now related to the money which is not in the coffers of the Government, and it cannot, therefore, be said to be a question relating to revenue within the meanings of section 226 of the Government of India Act. There is no force in this contention, as would appear from the relief sought in the plaint, which runs as under :‑ "For a declaration that the levy of duty on imported matches at the enhanced rate of Rs. 3‑15‑0‑per gross and the consequent recovery by the defendant of Rs ..in excess from the plaintiff is illegal, ultra vires and void." It would appear from the above relief that the levy of duty on the imported matches is directly in issue. Moreover, it would appear from section 136 of the Government of India Act that revenues of the Federation" includes "all revenues and public money raised or received by the Federation." It is not only that money which is raised as revenue, but also that which A is received by the Federation. The money received as duty on imported goods will not lose its characteristic of being revenue, simply because the Government had been able to realise the same. The contentions No. 2 and (3) mentioned above and urged by the learned Advocates for the plaintiffs can be disposed of together, as they, in effect, involve the same question, i. e., whether this Court can, if the matter relates to revenue, examine the alleged act of the Central Board of Revenue which is contended to be illegal and without jurisdiction. In the present case it was contended, the letter of the Central Board of Revenue dated 17th April, 1950 addressed to the Collector of Customs was not in accordance with section 4 of Tariff Act, of 1934, and therefore, section 226 of the Govern ment of India Act would not bar the jurisdiction of this Court. Mr. Nasiruddin, the learned Advocate who appeared for the Federation of Pakistan, relied on a number of cases in support of his contention that if the matter relates to revenue this Court cannot look into the legality or otherwise of the letter under which the duty on imported goods had been realised. In support of his contention he relied on a number of cases. I would content myself by mentioning only the cases which have fully considered the question. The leading case on this question is that of Spooner v. Juddow, (4 Moor's Ind. Appeals 353). The relevant observation of Lord Compbell at page 379 is: "The point, therefore, is, whether the exception of jurisdiction only arises where the defendants have acted strictly, according to the usage and practice of the .country, and the regulations of the Governor and Council. But upon this supposition the proviso is wholly nugatory; for if the Supreme Court is to enquire whether the defendants in this matter concerning the public revenue were right in the demand made, and to decide in their favour only if they acted in entire conformity to the regulations of the Governor and Council of Bombay, they would equally be entitled to succeed, if the statutes and the charters contained no excertion or proviso for their protection." A similar contention was raised in the case of G. G. in Council v. Rallay Investment and Company Ltd. (A I R 1944 F C51). Spence C. J. observed at page 54 " If in such cases the Court should be called upon to decide whether the claim was well founded in law before applying the bar under section 226, the provisions would be practically rendered nugatory This question was again considered by the Federal Court in the case of G. G. in Council v. Shiromani Sugar Mill Ltd., (A I R 1946 F C 16.) A similar question was considered by Vellani J. in suit No. 25 of 1952 Abdur Rahman v. The Government of Sind, where certain acts were challenged to be illegal and ultra vires the Sind Legislative Assembly, and the money realised thereunder was sought to be recovered on the ground that it was illegally realised. Vellani J. in a well‑considered Judg ment was of the opinion that section 226 of Government of India Act was a complete bar to any such consideration, where the matter related to revenue. In the present case, as I have already mentioned, the question ultimately relates to the collection of revenues as it is concerning the realisation of duty on imported goods, and the question of examining whether the letter under which the increased duty had been realised was ultra vires the Central Board of Revenues or not cannot be considered. Mr. Nasiruddin has relied on a number of cases where the bar under section 226 of the Constitution Act has been considered and applied: (1) Gobindrajulu Naidu v. Secretary of State (A I R 1928 Mad. 659). (2) Khan Bahadur H. M. and D. H. Bhiwandi walla and Co. v. Secretary of State (A I R 1937 Mad. 536). (3) Bruusgaad Kiosteruds Dampskibe Aktiesalskab v. Secretary of State (A I R 1940 Born. 294). (4) Ali Ahmed v. Collector of Bombay (A I R 1950 Bom. 33). (5) rlanda Rubbar works Ltd. v. Income Tax Officer, (A I R 1950 E P 210), I would, therefore, for the reasons given above, hold that the bar under section 226, Government of India Act, 1935 is absolute, as the question concerning the imposition of Import duty on match boxes is a question relating to revenues. I, therefore, dismiss the suits with costs. A. H. Suits dismissed.