Judgment :- Suit for refund of Rs. 20, 544.83 being the excess amount of the duty illegally collected by the defendant from the plaintiff company in respect of five consignments of Tetracycline Hydrochloride in injections imported under the brand name 'Hostacycline' manufactured by Messrs. Farbwerke Hoechst A.G. The plaintiff company filed bills of entry and asked for clearance of the consignments. The Assistant Collector of Customs assessed the consignments to duty under item 28(A) of the Indian Customs Tariff (hereinafter referred to as the I.C.T.). The plaintiff's case is that the Hostacycline (Tetracycline Hydrochloride) injections imported by them are antibiotics assessable to duty of 20% under item 28(27) of the I.C.T. and not to duty of 50% under item 28(A) of the I.C.T. The plaintiff company claimed refund of the excess duty paid on the said wrong classification, but the claim was rejected by the Assistant Collector of Customs, and the appeals preferred by the plaintiff company to the Collector of Customs were unsuccessful as the Collector of Customs acting on the instructions of the Central Board of Revenue found that the goods were properly classified under item 28(A) of the I.C.T. because the goods imported were not antibiotics pure and simple but contained other therapeutic ingredients. The Collector of Customs who disposed of the appeals held that the ascorbic acid which was present in Hostacycline injections served two roles, viz. as a buffering agent and also as a substance which has its own therapeutic effect. 2.The defendant's case is that Hostacycline injections are not antibiotics pure and simple as they contain other therapeutic ingredients, that in this case the manufacturers have deliberately added ascorbic acid in large quantities with the intention of the said ascorbic acid having its own therapeutic value, that the preparation in question has therefore been correctly classified under item 28(A) of the I.C.T., that it is for the customs authority to classify the goods under specific items for purposes of levy of duty, that the Sea Customs Act is a complete code in itself providing for the redress or grievances by the Tribunals referred to therein and by no others, that this Court has, therefore, no jurisdiction to review, the decisions of the Customs Authorities and the Tribunals constituted thereunder and that the plaintiff company not having exhausted all the remedies provided under the Sea Customs Act, the suit is premature. 3.The plaintiff company filed Writ Petitions Nos. 1106 to 1110 of 1959 on the file of this Court for issue Writs ofCertiorariandMandamusto obtain refund of the excess duty collected from it. The defendant contended in the Writ Petitions that ascorbic acid when present large quantities as in Hostacycline intravenous injections acts not only as a buffering agent but also possess other therapeutic effect. But the plaintiff company denied the same. Veraswami J. who heard the writ petitions held it is not possible to resolve the controversy whether ascorbic acid in Hostacycline intravenous injections will have both the effects of acting as a buffering agent and as a therapeutic agent, or only as buffering agent, without taking evidence, and dismissed the Writ petitions leaving it open to the plaintiff company to seek its proper remedy in a regular suit. The relevant portions of the Indian Customs Tariff are as follows :- Clause (d) Section 3 of the Drugs Act, 1940 defines "Patent or Proprietory medicines" as - "a drug which is a remedy or prescription prepared for internal or external use of human beings or animals and which is not for the time being recognised by the Permanent Commission on Biological Standardisation of the World Health Organisation or in the latest, edition of the British Pharmacopoeia or the British Pharmaceutical Codex or any other Pharmacopoeia authorised in this behalf by the Central Government after consultation with the Board" * . 4.The Tetracycline Hydrochloride is an antibiotics falling under clause 28(27) of the Indian Customs Tariff. The Drug is administered orally as capsules or tablets or through injections either intramuscular or intravenous. Each manufacturer uses his own trade name for his drug. The Plaintiff company manufactures the antibiotic under its trade name Hostacycline. In this suit we are not concerned with Hostacyline capsules, but only with Hostacycline injections. Loderle Company has labelled its product of tetracycline Hydrochloride as Achromycin. Lepetit Company has labelled its product of Tetracycline Hydrochloride as Ambramycin. Squibb and Sons have labelled their produce of Tetracycline Hydrochloride as Steclin. Pfizer and Co., has labelled its product of tetracycline hydrochloride as Tetrocyin. Loderle Company has labelled its product of tetracycline Hydrochloride as Achromycin. Lepetit Company has labelled its product of Tetracycline Hydrochloride as Ambramycin. Squibb and Sons have labelled their produce of Tetracycline Hydrochloride as Steclin. Pfizer and Co., has labelled its product of tetracycline hydrochloride as Tetrocyin. 5.The Plaintiff's case is that other brands of tetracycline hydrochloride, viz., Achromycin and Tetrocyin have been classified under item 28(27) of the I.C.T. and duty has been collected on that basis and that Ambramycin injections and Reverin injections which are other brands of tetracycline hydrochloride are also assessed under item 28(27) of the I.C.T. and only 20% duty is collected. According to the plaintiff this is clear case of discrimination against it. Ex. P-5 is a public notice No. 54 dated 21-4-1956 issued by the Collector of Customs, Bombay, and it shows that Achromycin capsules, Achromycin Intravenous, Achromycin Intramuscular Hostacycline capsules, Terramycin capsules, Terramycine Intravenous and Terramycine Intramuscular have all been classified under item 28(27) of the I.C.T. But, subsequently, in 1957 Hostacycline alone was classified under item 28(A) as evidenced by Ex. P-6. On the representation of the plaintiff company Hostacycline capsule was reclassified under item 28(27) of the I.C.T. But Hostacycline Intramuscular and Intravenous injections were classified under item 28(A) of the I.C.T. as evidenced by the document Ex. P-7 and the correction list Ex. P(6) (a). The plaintiff company thereupon wrote the letter Ex. P-8 to the Central Board of Revenue pointing out the classification of similar preparations, such as Tetracyin and Achromycin injections under item 28(27) of the I.C.T. The Central Board of Revenue by its letter Ex.P-9 called upon the plaintiff to furnish the particulars of the similar preparations mentioned by the plaintiff company as having been classified under item 28(27) of the I.C.T. and the plaintiff company sent the reply Ex. P-10. The plaintiff company complained in the letter Ex. P-17 about the discrimination in classifying their brand of tetracycline hydrochloride injections alone under item 28A of the I.C.T. where while other brands were continued to be classified under item 28(27) of the I.C.T. The Board of Revenue sent the reply Ex. P-10. The plaintiff company complained in the letter Ex. P-17 about the discrimination in classifying their brand of tetracycline hydrochloride injections alone under item 28A of the I.C.T. where while other brands were continued to be classified under item 28(27) of the I.C.T. The Board of Revenue sent the reply Ex. P-18 that as Hostacycline injections contained large amount of ascorbic acid which played a dual role as buffering agent and as therapeutic agent the said drugs were classified under item 28-A of the I.C.T. and that the plaintiff company should approach the Collector of Customs about other similar preparations having been assessed differently. The public notice Ex. P-41 dated 29th June, 1959 shows that other similar competing products like Achromycin (Lederle), Tetracyin (Pfizer) and Ambramycin (Lepetit) were directed to be similarly assessed to duty under item 28A of the I.C.T. as in the case of Hostacycline injections. The plea of the defendant in paragraph 9 of its written statement that identical preparations manufactured by other concerns were not assessed differently under items 28(27) of the I.C.T. is clearly incorrect. But in paragraph 10 of its written statement the defendant has put forward the plea that even if there has been any such classification and assessment as pleaded by the plaintiff it must have been due to inadvertence or mistake and as such it cannot create a right in the plaintiff. Having regard to these inconsistent pleas put forward by the defendant it is difficult to accept the bonafides. It may be that subsequent to Ex. P-41 all brands of Tetracycline Hydrochloride injections are assessed alike under Item 28A of the I.C.T. But there can be no doubt that in 1958 when the suit consignments were imported, there was clearly discrimination against the plaintiff's goods. 6.The customs authorities have classified Hostacycline injections under item 28A of the I.C.T. solely on the ground that ascorbic acid content was high and that is served two roles, viz., as buffering agent and as a substance which gives its own therapeutic effect. This is clear not only from the order Ex. P-4 on the writ petitions filed by the plaintiff, but also from the several orders of the Assistant Collector and the Collector of Customs. Hence the main question for consideration in this suit is whether the ascorbic acid in Hostacycline injections has any therapeutic value. This is clear not only from the order Ex. P-4 on the writ petitions filed by the plaintiff, but also from the several orders of the Assistant Collector and the Collector of Customs. Hence the main question for consideration in this suit is whether the ascorbic acid in Hostacycline injections has any therapeutic value. British Pharmacopoeia 1958 Edition page 670 deals with Tetracycline and Procaine Injection. It shows that the injection may contain suitable buffering and stabilising agents. A buffer is (i) any substance in a fluid which tends to lesson the change in hydrogenion concentration (reaction) which otherwise would be produced by adding acids or alkalis (ii) any substance which decreases or prevents the reaction that a chomotherapeutic agent would produce if administered alone. Many times in pharmaceutical preparations, it is important to adjust the acidity or alkalinity in order to retain the stability of the preparation. To reduce irritation the preparation is frequently adjusted approximately to the same acidity or alkalinity as the area with which it comes into contact. pH is a symbol commonly used in expressing the hydrogen ion concentration i.e., measure of alkalinity or acidity. Solutions of known hydrogenion concentration which are used as standards are frequently kept for long period of time under conditions that might readily alter their pH value. To prevent such changes or at least to minimise them, solutions of known hydrogenion concentration may be prepared which are resistant to alteration in pH. Such solutions are known as buffer solutions. In general, a buffer solution may be made from known quantities of a weak acid or a salt of that weak acid or from a weak alkali or a salt of the weak alkali. In the case of a substance like Tetracycline Hydrochloride, other ingredients such as Magnesium Gluconate ascorbic acid are used to increase the solubility of the substance when the solvent is added and another reason for this addition is to prevent oxidation by acting as a hydrogen donor. It is left entirely to the manufacturers of the preparation (a) to choose the buffering agent, (b) to select one or more buffering agents and (c) to use such quantity as is necessary. 7.The Plaintiffs brand of Hostacycline intramuscular injections have the following composition : Hostacycline intravenous injections have the following composition : The extra Pharmacopoeia by Martindale, Vol. It is left entirely to the manufacturers of the preparation (a) to choose the buffering agent, (b) to select one or more buffering agents and (c) to use such quantity as is necessary. 7.The Plaintiffs brand of Hostacycline intramuscular injections have the following composition : Hostacycline intravenous injections have the following composition : The extra Pharmacopoeia by Martindale, Vol. I, 24th Edition, page 1469 shows that in the preparation of injections the proportion of tetracycline hydrochloride and ascorbic acid is 1 : 3 in the case of intravenous injections, and 1 : 2.5 for intramuscular injection. The Hostacycline intramuscular and intravenous injections contain much less ascorbic acid that what is mentioned above. The learned Advocate for the plaintiff company referred to the fact that the ascorbic acid contact in Hostacycline injections is much less than that contained in similar preparations of other manufacturers. 8.The plaintiff company has examined P.W. 1 Dr. K. Sanjivi, a leading Physician of Madras, in support of its case that the ascorbic acid in Hostacycline injections has no therapeutic effect. He deposed that when he prescribed any brand of tetracycline hydrochloride he does not prescribed it for the ascorbic acid content. It is true ascorbic acid is used for prophylaxis and treatment of scurvy and that the dosage as given in the British Pharmacopoeia 1958 Edition at page 61 is 25 to 75 mg. daily as prophylactic and 0.2 to 0.5 G as a therapeutic measure. But the question to be considered in this suit is whether ascorbic acid has been included in Hostacycline injections as a buffering agent or as a therapeutic agent. The evidence of P.W. 1 Dr. Sanjivi clearly proves that the ascorbic acid in Hostacycline injections has no therapeutic value. He deposed that a doctor will not prescribe tetracycline hydrochloride for a person suffering from Vitamin C deficiency. He stated that he can not imagine any doctor prescribing tetracycline hydrochloride for a patient requiring treatment for Vitamin C deficiency. It is clear from his evidence that an infant has to be given 10 anpoules of Tetracycline Hydrochloride per day as intramuscular injections if it should be given the necessary dose of ascorbic acid for Vitamin C deficiency and that such a dosage is dangerous and that the doctor directly prescribe Vitamin C to a patient suffering from Vitamin C deficiency. Apart from the fact that it would be very costly to prescribe tetracycline hydrochloride injections for its ascorbic acid content for a patient suffering from Vitamin C deficiency, it would be dangerous to indiscriminately prescribe such a drug. P.W. 1 Dr. Sanjivi stated in cross-examination that when ascorbic acid is used in a drug in combination, it acts as a buffering agent and it is not used as a therapeutic agent. 9.The defendant has pleaded in paragraph 8 of its written statement that the buffering agent like Magnesium Chloride and sodium glycinate could have been added to the preparation in question since they act as good buffering agents that do not have any therapeutic value. It is left entirely to the manufacturers of the preparations to choose the buffering agent and it is not open to the Collector of Customs to advise that buffering agent should be chosen by a manufacturer of drugs. I have already referred to the British Pharmacopoeia in 1958 Edition which recognises the addition of suitable buffering and stabilising agents. In dealing with the preparation of oxytetracycline Hydrochloride, Martindale, in the Extra Pharmacopoeia Vol. 1 24th Edition, has stated that a mixture of oxytetracycline hydrochloride 1 and ascorbic acid 4 was suitable for preparing intravenous solutions which were more stable than those prepared from oxytetracycline hydrochloride 1, sodium glycinate 0.9. Thus ascorbic acid is a better stabilising and buffering agent than sodium glycinate. The plaintiff company has rightly pointed out in their reply affidavit Ex. P-5 in writ petitions that in the manufacture of a life saving broad spectrum antibiotic like tetracycline hydrochloride, it is essential that every care should be taken to ensure that the highest standards in respect of stability are maintained as otherwise the potency of the antibiotic would be reduced and thus result in inadequate efficacy. If suitable and adequate buffering agents are not added the drug may become misbranded and the plaintiff company may run the risk of prosecution under the Drugs Act. There could therefore be no doubt that the ascorbic acid content in Hostacycline injections is not high and that it has no therapeutic value. 10.The mere fact that an ingredient added solely as a suitable buffering agent may independently have therapeutic action is no ground for holding that it has therapeutic effect when it is used as a buffering agent. There could therefore be no doubt that the ascorbic acid content in Hostacycline injections is not high and that it has no therapeutic value. 10.The mere fact that an ingredient added solely as a suitable buffering agent may independently have therapeutic action is no ground for holding that it has therapeutic effect when it is used as a buffering agent. There are other cases of buffering agent mentioned in recognised preparations of British Pharamacopoeia which independently have such therapeutic value as in the case of ascorbic acid. Thus in Thiopentone sodium, mentioned at page 675 of British Pharmacopoeia 1958 edition, Sodium Carbonate is used as a buffering agent which independently has therapeutic value. Similarly in the preparation of Procaine Penicillin mentioned at page 528 of British Pharmacopoeia 1958 edition, Procaine used as a local anaesthesia has independently therapeutic action and it could not be said that it has been added on account of its therapeutic value. It is evident from the literature of the various brands of Tetracycline Hydrochloride such as Ambramycin, Achromycin, Hostacycline and Tetrocyin, that the manufacturers of the drugs do not claim any therapeutic value for ascorbic acid. On the other hand, it is stated in the literature and cartoons of the several brands that ascorbic acid has been added as a buffering agent. 11.The learned Government Pleader contended that Hostacycline intramuscular injections contain other therapeutic ingredients such as Hostacaine, Procaine, and Magnesium Gluconate and hence it cannot be classified under item 28(27) of the I.C.T. Tetracycline and Procaine injection finds a place in British Pharmacopoeia in 1958. Hostacaine is a similar preparation of Hochest like procaine. The quantity of Procaine Hydrochloride to be added to tetracycline Hydrochloride is not mentioned in the British Pharmacopoeia. But it is common practice to add 40 mg. of Procaine Hydrochloride. Hostacycline intramuscular injections contain Procaine hydrochloride 30 mg. and Hostacine 10mg. making in all 40 mg. Squibb & Sons have added Lidocaine in the place of procaine. P.W. 1 Dr. Sanjivi deposed that procaine is added as local anaesthesia and that it has no therapeutic value. It is clear from his evidence that Hostacaine and Lidocaine have the same action as Procaine hydrochloride. and Hostacine 10mg. making in all 40 mg. Squibb & Sons have added Lidocaine in the place of procaine. P.W. 1 Dr. Sanjivi deposed that procaine is added as local anaesthesia and that it has no therapeutic value. It is clear from his evidence that Hostacaine and Lidocaine have the same action as Procaine hydrochloride. It should be noted that it is only in the written statement, the defendant has put forward the plea for the first time that hostacycline intramuscular injections cannot fall under item 28(27) of the I.C.T. on account of its containing Hostacaine, Procaine and Magnesium Gluconate. For the forgoing reasons, I find that Hostacaine and Procaine have no therapeutic effect and hence Hostacycline intramuscular injections cannot be excluded from item 28(27) of the I.C.T. on that ground. 12.The plaintiff has slated in the reply affidavit Ex. P-3 in the writ petitions that Magnesium Gluconate and ascorbic acid present in Hotacycline intramuscular and intravenous injections serve only the role of buffering agents and they have no therapeutic value. I have already referred to the fact that the only ground on which the defendant classified all other brands of tetracycline hydrochloride preparations under item 28A of the I.C.T. is that the amount of ascorbic acid in the preparation is quite large and served two roles, namely, as a buffering agent and as a substance which gives its own therapeutic effect and not on the ground that it contained Magnesium Gluconate. In the 45th issue of the I.C.T. of the year 1958 the name of the article under item 28(27) is described as "antibiotics such as gramicidin, tyrocodine and tyrothricin". But in the subsequent edition the article has been described as "antibiotics which contain only one antibiotic and are free from other therapeutic ingredients, but not including pencillin in bulk, and pencillin and its products specified in items 28(26) and 28(26A)." * It is clear from the Finance Bill of 1958 that this amendment of item 28(27) of the I.C.T. came into force even at the stage of the bill on 1-1-1958. Hence the amendment will operate in respect of the suit consignments which were cleared after April 1958. Hence the amendment will operate in respect of the suit consignments which were cleared after April 1958. But in view of my finding that Hostacaine, Procaine, Magnesium Gluconate and ascorbic acid have no therapeutic value, they cannot be considered to be therapeutic ingredients within the meaning of item 28(27) of the I.C.T. It should be noted that Hostacycline injections could not fall under item 28A of the I.C.T. as they are not patent or proprietory medicine as defined in clause(d) of the Drugs Act, 1940. It could not be said that the antibiotic such as Hostacycline would not fall under item 28(27) of the I.C.T. in spite of that it does not fall under item 28A of I.C.T.13. The plaintiff has in paragraph 22 of its reply affidavit Ex. P-3 referred to the ruling of the Board of Revenue contained in the Indian Customs Tariff Guide, Seventh Edition Page 237. It shows that item 28(27) of the I.C.T. refers only to antibiotics such as Streptomycin, gramicidin, tyrocidine and tyrothricin, i.e., only to single antibiotics in their pure state. In the ruling of the Customs Board of Revenue dated 11-7-1955 it was held that synthomycetine Palmitate syrup which consists of Chloramphenical accompanied by body builders, dispersing agents and syrup has only the antibiotic as the active therapeutic ingredient and would therefore be assessed under item 28(27). Thus it is clear from this ruling that Hostacycline injections could be assessed under item 28A of the I.C.T. only if it contained other therapeutic ingredients. 14. For the forgoing reasons, I find on issue I that the classification of the suit consignments by the Assistant Collector of Customs under item 28A of the I.C.T., levy and collection of duty thereon under the said item are illegal and on issue 2 that the correct classification of the suit consignments should be under item 28(27) of the I.C.T. 15.The defendant has pleaded in paragraph 13 of its written statement that the plaintiff not having exhausted all the remedies provided under the Sea Customs Act, the suit is premature and not maintainable. The plaintiff has alleged in paragraph 7 of the plaint that the appeals were rejected by the Collector of Customs acting on the instructions of the Central Board of Revenue that the goods were properly classified under item 28A because the goods imported were not antibiotics, but contained other therapeutic ingredients. The plaintiff has alleged in paragraph 7 of the plaint that the appeals were rejected by the Collector of Customs acting on the instructions of the Central Board of Revenue that the goods were properly classified under item 28A because the goods imported were not antibiotics, but contained other therapeutic ingredients. The defendant has stated in his written statement that it is untrue to state that appeals were rejected by the Collector acting on the instructions of the Central Board of Revenue. The Central Board of Revenue has issued the public notice Ex. P-41 negativing the contention of the plaintiff company. Hence no useful purpose will be served by the plaintiff filing any revision to the Central Government. InVenkateswaranv.Wadhwaniit was held that the rule that the 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 High Court to entertain the petition or to deal with it but is rather a rule which courts have laid down for the exercise of their discretion. If this court has jurisdiction to review the classification made by the customs authorities and the tribunals constituted under the Sea Customs Act, it could not be said that the said jurisdiction could not be exercised merely on account of the fact that the plaintiff company has not exhausted its remedies under the Sea Customs Act by filing a revision to the Government. I find on issue 4 that the suit is not premature and is maintainable.16.The defendant had pleaded in its written statement that it is for the customs authorities to classify the goods under the specific items for the purpose of levy of duty and that this Court has not jurisdiction to review the decisions of the customs authorities and the tribunal constituted thereunder. The learned Government Pleader relied on the well known decision inSecretary of State for Indiav.Mask & Co.where it was held by the Privy Council that a decision by an Assistant Collector on the duty leviable on imported goods is a decision within the meaning of Section 188 of the Sea Customs Act, and when the right of revision therefrom conferred by Section 191 has been exercised and an order under that Section is made, the order is final and the jurisdiction of the civil courts is excluded. The above decision was given before the Constitution of India coming into force. InUjjam Baiv.State of Uttar Pradesh, it was held that an order of assessment made by an authority under a taxing statute which isintra viresand in the undoubted exercise of its jurisdiction cannot be challenged on the sole ground that it is passed on a misconstructions of a provisions of the Act or of a notification issued thereunder and that the validity of such an order cannot be questioned in a petition under Art. 32 of the Constitution. It was pointed out in that decision that the proper remedy for correcting an error in such an order is to proceed by way of appeal, or if the error is an error apparent on the face of the record, then by an application under Art. 226 of the constitution. It was held in that decision that as there was no vilolation of any fundamental right, a writ petition under Art. 22 of the Constitution was not maintainable. The decision inGulabdas and Companyv.Assistant Collector of Customsalso relates to the scope of the jurisdiction under Article 32 of the Constitution of India. Thus the petitioners in that case contended that the goods imported by them were wrongly classified by the Collector of Customs under item 45(4) instead of 45 (a) of the Customs Tariff. The Supreme Court observed that the contention that the impugned orders are manifestly erroneous, because "Crayons" have been treated as "coloured pencils" is not a contention which can be gone into in an application under Art. 32 of the Constitution and that it has no bearing on the question of the enforcement of a fundamental right, nor can the question be decided without first determining what constitutes the distinction between "coloured pencil" and a "Crayon", a distinction which must require an investigation into disputed facts and materials. It was pointed out in that decision that the classifying "Food Oats" as grain could not be held to be perverse and could not be interfered with. In the decisions inAssistant Collector of Customsv.Mercantile Express Company, the appellants relied on the decision inSecretary of State for Indiav.Mask and Companyin support of his contention that since the appellate order is by section 188 of the Sea Customs Act made final, and since the Sea Customs Act contains a precise and self contained code of appeal and revision, the High Court has no power to quash the order on certiorari. The decision of the Privy Council was distinguished on the ground that the Privy Council was not called upon to consider the question whether the orders were open to challenge on certiorari for excess of jurisdiction or for error of law apparent on the face of the record. It is clear from that decision that an appellate authority deciding an appeal under section 188 of the Sea Customs Act from an order of assessment discharges a quasi-judicial function, and its orders, therefore, are also quasi-judicial, amenable to the remedy of certiorari and prohibition. It was held in that decision that an assessing authority discharging an administrative function is not above the law and the assessing authority is bound to assess the duty according to law and if the very basis of the assessment is illegal, a writ of mandamus may well issue commanding the authority to forbear from enforcing the illegal order. InChimanlalv.Union of Indiait was pointed out that an assessee entitled to have the assessment made under the proper legal provision and that the assessing authority whether administrative or quasi-judicial cannot by an arbitrary decision transform the goods belonging to one category into goods belonging to another category and confiscate the same. In the recent Supreme Court decision inProvincial Government, Madrasv.J.S. Basappait has been pointed out that the exclusion of the jurisdiction of the civil court is not to be readily inferred even if a provision giving the orders a finality was enacted, civil courts still have jurisdiction to interfere where fundamental provisions of the Act are not complied with, or where the statutory tribunals do not act in conformity with the fundamental principles of judicial procedure. It was held in that case that the finality that section 11(4) of the Madras General Sales Tax Act (Act IX) of 1939 conferred upon orders of assessment, subject, however, to appeal and revision, was a finality for the purposes of the Act and it did not make valid an action which was not warranted by the Act, as for example, the levy of tax on a commodity which was not taxed at all or was exempt. It is clear from the decision inVenkateswaranv.Wadhwanithat a Division Bench of the Bombay High Court varied the classification made by the Assistant Collector of Customs by holding that fountain pens in which certain of its essential parts, nib, clip, and cap plated with gold falls into the category of "fountainpens completed" under 45(3) and not under item 61(8) as "articles plated with gold and silver" on the ground that the construction put by the Customs authorities was unreasonable or perverse. Thus if the construction put by the Customs authorities is unreasonable or perverse, or manifestly and obviously erroneous as in this suit, the Court has clear jurisdiction to find that the classification is illegal. P.W. 1 Dr. K. Sanjivi, a leading physician of Madras, has clearly stated that he cannot imagine any doctor prescribing Hostacycline to persons suffering from Vitamin deficiency. Thus the view of the Customs authorities. Hostacycline injections contain other therapeutic ingredients is patently perverse and obviously erroneous. I find on issue 5 that this Court has jurisdiction to review the previous classification made by the Customs authorities and tribunals constituted under the Sea Customs Act.In the result, the plaintiff is entitled a decree as prayed for with costs.