P L D 1958 Dacca 472 (PLP)

(c) goods brought from any foreign port to any customs‑port, and without payment of duty, there transhipped for, or thence carried to, and imported at, any other customs‑port ; and (d) goods brought in bond from one customs‑port to another." Section 37 is in these words "The rate of duty and the tariff valuation (if any) applicable to any goods imported shall be the rate and valuation in force on the date on which the. bill of entry thereof is delivered to the Customs‑collector under section 86 ; Provided that if such goods are warehoused under this Act, the rate and valuation (if any) applicable thereto shall be the rate and valuation in force on the date of the actual removal of such goods from the, warehouse in the case of goods delivered out of a warehouse for home consumption, and in the case of goods delivered out of a warehouse for removal under bond to be re‑warehoused where the duty is paid on such goods without their being re‑warehoused, the rate and valuation (if any) in force on the date on which duty is paid. Explanation.‑A bill of entry shall, for the purposes of this section, be deemed to be delivered when it is first presented to the proper officer of Customs." Section 86 provides.: "The owner of any goods imported shall, on the landing thereof from the importing ship, make entry of such goods for home consumption or warehousing by delivering to the Customs collector a bill of entry thereof in duplicate, in such form and containing such particulars, in addition to the particulars speci fied in section 29, as may, from time to time, be prescribed by the Chief Customs‑officer. The particulars of such entry shall correspond with the particulars given of the same goods in the manifest of the ship."

9. It is clear from the above sections that liability to pay import duty depends upon inward entry i.e., on the goods entering the Port, and that the rates of duty shall be those that are in force on the date of landing. This interpretation of 'the section has not been challenged by the learned Advocate for the appellants. His contention is that the plaintiffs were liable to pay import duty because of the declaration made by them in the' bills of entry in pursuance of the instructions contained in paragraph 6 of the General Manual. The said paragraph 6 of the Manual at page 207 says "ACCEPTANCE OF BILLS OF ENTRY PRIOR TO ENTRY INWARDS OF VESSELS. The Prior‑to‑Entry system under which bills of entry are accepted and completed up to a certain stage pending the actual arrival and final entry of vessels is extra‑legal and it is a con dition precedent to the acceptance of a bill of entry under the system that importers should make a definite statement therein, that for the purposes of section 37, Sea Customs Act, it is expressly agreed that the bill of entry shall be deemed to be delivered on date on which the order for inward entry is passed; in consequence, the goods are assessed on the tariff value. and at the rate of duty in force on the date of final entry inwards."

10. In pursuance of the above instruction, the importer made the following declarations in the bills of entry which they sub mitted between 25‑6‑49 and 2‑7‑49 "This bill of entry is presented under and subject to Collector's notice dated 24th November 1902 and for the purpose of section 37, Sea Customs Act; it is expressly agreed that it shall be deemed to be delivered on the date on which the order for inward entry is passed, and this bill of entry in fact be so deemed to be delivered." Now, this Manual contains departmental instructions. The learned Government Advocate did not contend 'that these departmental instructions had the force of law, and in view of their nature he could not have possibly so contended. The aforesaid Manual embodies the instructions of the Central Board of Revenue which, therefore, have no force of law. The learned Government Advocate, realising his difficulty, has relied on the declaration of the plaintiffs contained in the bills of entry. First of all, let us con sider the nature of this declaration. The declaration says that the bill of entry shall be deemed to be delivered on the date on which the order for inward entry was passed. It does not say that the importer will be liable to pay import duty at the rate in force on that date. To explain this declaration, the learned Advocate for the Government has referred to the last sentence in paragraph 6 of instructions which says " . . . in consequence the goods are assessed on the tariff value and at the rate of duty in force on the date of final entry inwards."

11. He, has, therefore, argued that by this declaration the importer made himself liable to pay duty at the rate in force on the date of final entry inwards. If this interpretation is accepted, then the question would be what was the date of final entry of the ship inwards ? The contention of the Government was that the date of final entry of the ship was 30‑7‑49 whereas the plaintiffs' case was that the ship finally entered inwards on 19‑8‑

49. Accord ing to them, they were allowed to go to the B. O. C. Mooring on 29‑7‑49 to get provisions and water and they moved outside on 1‑8‑49 and the ship finally got berth on 19‑8‑

49. There is sufficient and satisfactory evidence that in 1949 there was great congestion in Chittagong Port and the ship had to wait at the outer anchorage for months before getting a berth. In this case, the ship, which arrived in May 1949, could not get a berth till 19‑8‑

49. As she was getting short of provisions and water, she was allowed to enter the Port area for a day or two to get water and provisions. Can this be regarded as "final inward entry?" We think not. The word `final' connotes that such entry should be for fulfilling the purpose for which the ship came to Port, that is,; for discharge of the cargo. We agree with the learned Subordinate Judge that the entry of 29‑7‑49 in the B. O. C. Mooring for getting provisions cannot be regarded as final entry inwards. We, therefore, hold that the ship finally entered inward on 19‑8‑

49. In the circum stances, the declaration in the bill of entry will not help the appellants at all.

12. In view of the above finding, it was not necessary to consider whether this declaration contravened the provisions of section 23 of the Contract Act. As some argument was advanced on this point, we shall deal with the same. It seems that as the submission of bill of entry after landing of goods will delay the delivery of cargo to the Trade, the authorities agreed to allow them to submit their bills prior to the arrival of the ship on condition that the date of delivery of the bill of entry will be regarded as the date of order for inward entry. This measure was adopted for the benefit of the Trade. The arrangement was certainly not hit by section 23 of the Contract Act, because they were not doing something 'which was prohibited by the Act. Now, the liability to pay duty depends on the charging section 20 of the Act. The final entry of a ship inward is the foundation of jurisdiction of the Government to realise import duty. Hence by getting this decla ration they have not contravened the provisions of section

20. No doubt, it may be said that this declaration contravenes the provisions of section

86. Section 86 occurs in Chapter IX which deals with discharge of cargo and entry of goods inwards. This section lays down the procedure regarding submission of the bill of entry. In other words, sections 37 and 86 are the machinery sections to determine the amount of duty. It is thus clear that liability to pay duty depends upon the charging section 20 and not upon those parts of the Act which relate to the machinery for quantifying the duty. Now, so far as machinery portion is concerned, it is open to the Trade to waive the same‑see in Attorney‑General v. Aramaya ((1925) 9 Tax Causes 445).

13. The Government have attempted to use, this declaration for the purpose of imposing duty. This they re not entitled to do. This declaration cannot and did not modify the charging section. If it did, we would have had no hesitation to hold that it was invalid and ineffective. Therefore, it was not and could not, be argued that the declaration contemplated that if import duty was abolished prior to inward entry of the ship, even then it would become payable.

14. Now, in this case, the ship made final inward entry on 19‑8‑

49. The import duty on cotton yarn was lifted on 17‑8‑

49. Hence the learned Subordinate Judge has rightly held that the plaintiffs were not liable to pay duty on the cotton yarn imported by the ship. S. S. Clan Hessione.

15. Next, we take up the question whether the plaintiffs were entitled to get a refund of the entire amount paid by them ? They paid Rs. 1,608‑9‑0 prior to 14‑7‑49 and Rs. 54,128‑10‑0 after landing of the goods on 19‑8‑

49. The import duty on cotton yarn was lifted with effect from 17‑8‑

49. On 14‑7‑49 import duty was payable on cotton yarn under the law. Hence it cannot be urged that the payment of Rs. 1,608‑9‑0 was made under a mistake of law or fact. Furthermore, the evidence clearly indicates that this payment was a voluntary one. Now, when money is paid volun tarily with full knowledge of all the facts, it cannot be recovered on the ground that the payment was made under a mistake of law or fact‑See Katherine Stiffles v. Car Mackertich (39 C W N 174) and Lakshmanprasad and Sons v. Achutan Nair (A I R 1955 Mad, 662). In this case, there was no question of mistake of fact or law, because when this amount of Rs. 1,608‑9‑0 was paid, at that time the import duty was' leviable under the Act. We are, therefore, of the opinion that the' plaintiffs are not entitled to claim this amount of Rs. 1,608‑9‑0, either under section 65 or section 72 of the Contract Act.

16. Rs. 54,128‑10‑0 was, however, paid under protest after the lifting of the import duty. The evidence shows that the plain tiffs had to pay this amount in order to get their goods: They a. first refused to pay the amount, but the Customs Officer insisted, as a condition of getting their goods, on their paying this amount. Then they paid it under protest. These facts clearly show that the Customs authorities extorted this payment as they thought that the 1 plaintiffs wire liable to pay this amount before clearing their goods. In the circumstances, it cannot be said that the payment of Rs. 54,128‑10‑0 was a voluntary payment. We are of the opinion that, on the facts and circumstances of this case, the plaintiffs' claim for the sum of Rs. 54,128‑10‑0 come under section 72 of the Contract Act‑See Dooli Chand v. Ram Kishen Singh and others ( I L R 8 I A 93); Kanyalal v. National Bank of India (I L R 40 Cal. 598 PC) ; Shiba Prosad Singh v. Shrish Chandra (AIR 1949 P C 277) and Hopper v. Mayor and Corporation, Exeter ((1887) 56 L J Q B 457). In this last case, the Corporation of Exeter exacted harbour dues from the plaintiff in respect of exempted articles. It was held that the plaintiff was entitled to recover back the money so paid. Lord Coleridge, C. J., observed at page 458 : "From the case cited in the course of the argument it is shown that the principle has been laid down that where one exacts money from another and it turns out that, although acquiesced for years, such exaction is illegal. The money may be recovered as money had and received since such payment could not be considered as voluntary to penalise its recovery".

17. We, therefore, agree with the learned Judge that the plaintiffs were entitled to recover this amount of Rs. 54,128‑10‑0.

18. The learned Government Advocate has next contended that the jurisdiction to determine the amount of import duty on goods imported into this country is vested by the Act in the Customs Authority, and, therefore, a Court of Law could not sit in appeal over them and re‑try the question at issue. If certainly the import duty was payable for the goods, then their discretion as to the amount of duty cannot be interfered with, because they were doing something which they were empowered to do by the Act. If some goods are not dutiable under the Act, the mere assertion to the contrary will not confer any jurisdiction on the Customs Officer to act under that Act.

19. In this case, we find that the Customs Officer has merely acted on a colour of authority and purported to realise duty which was not payable under the Act. This in our opinion, he had no jurisdiction to do, and, in the circumstances, the Court is entitled to look into the matter. The view that we are taking finds support from the following decisions : The Secretary of‑State v. Mask and Co. (A I R 1940 P C 105) and Balkishen Das and others v. Simpson (25 1 A 151). In this connection, we may quote the following observations from In Adams v. Nagle ((1937) 303 U S 532) "Where a statute vests no discretion in an executive officer but to act under a given set of circumstances or forbade his acting except upon certain named conditions, a Court will compel him to act or to refrain from acting if he essays wholly to disregard the Statutory mandate ; but, if a discretion is bested in him and he is to act in the light of the facts, he ascertains and the judg ment he forms, a Court cannot restrain him from acting on the ground that he has exceeded his discretion by reason of an error either of fact or law which induced his conclusion." This case, in our opinion, falls within the category contemplated by the first part of the above quotation. The Act does not confer upon the Collector any discretion in the matter of imposition ox import duty. Hence, his acting being contrary to the Act and without legal sanction, the Court is entitled to look into the matter.

20. The last point raised by the learned Advocate for the appellant was that the suit was barred by one year's limitation prescribed under Article 14 of the Limitation Act. In support of his contention, he has relied on the decision in Brunsgaard Kiosteruds Dampskibs Aktieselskab v. Secretary of State (A I R 1940 Bom. 294). In the above case, the Assistant Collector of Customs imposed penalty under section 167 (17) of the Sea Customs Act. The Court held that the order was made by a Government officer in his official capacity and within his power and, hence if a person wanted to have a decision upon the legality or illegality of the order of the Assistant Collector, he should have put his plaint on the file within one year from its date.

21. In our opinion, the above case is not applicable : here. In the present ease, the claim in the plaint is based on the fact that the levy of the duty was illegal. The recovery of such payment falls under Article 62 of the Limitation Act‑See Suryajirao v. Sidhanath (A I R 1925 Bom. 425) ; Secretary of State v. Major Hughes (I L R 38 Bom. 293) ; , Bhusawal Municipality v. Musserwanji (A I R 1940 Bom. 252) and Indian Sugar and Refineries Ltd. v. Municipal Council (A I R 1943 Mad. 191). As the suit is instituted well within 3 years as provided in Article 62, the claim is not barred by limitation. No other point was urged in this appeal.

22. We have, however, held that the plaintiffs were not entitled ‑to recover the sum of Rs. 1,608‑9‑0 paid prior to the lifting of import duty.

23. In the result, we modify the decree of the Trial Court as follows : The plaintiffs will be entitled to get a refund of the sum of Rs. 54,128‑10‑0 which was exacted from them after lifting of the import duty. Thus there will be proportionate deduction in the amounts allowed as damages and costs.

24. The appeal is allowed to the extent indicated above. Each party will bear its own costs of this appeal. SATTAR, J.‑I agree. K. S. A. Appeal partly allowed.