1978 (8) TMI 91 - HC - Customs

Summary

Issues Involved:
1. Interpretation of Section 115(1)(e) of the Customs Act, 1962.
2. Application of Section 125 of the Customs Act, 1962.
3. Validity of the Additional Collector of Customs' order dated 23rd August 1975.
4. Maintainability of the application under Article 226 of the Constitution.

Issue-wise Detailed Analysis:

1. Interpretation of Section 115(1)(e) of the Customs Act, 1962:
The primary issue in this case was the interpretation of the term "substantial portion" within Section 115(1)(e) of the Customs Act, 1962. The respondent argued that "substantial portion" should be understood in the context of the totality of the imported goods, implying that the missing goods must constitute a substantial portion of the entire cargo for the vessel to be liable for confiscation. The court, however, found this interpretation problematic, as it would lead to difficulties in determining whether the term referred to the value or quantity of the goods. The court concluded that "substantial portion" should be interpreted in the context of the specific items or varieties of goods imported. Thus, if a substantial portion of any one item is missing, the vessel can be subject to confiscation to prevent smuggling, aligning with the legislative intent of the Customs Act.

2. Application of Section 125 of the Customs Act, 1962:
Section 125 provides an option to pay a fine in lieu of confiscation. The court noted that this provision is crucial in mitigating the harshness of confiscation, allowing the owner of the vessel to pay a fine instead. The Additional Collector of Customs had imposed a fine of Rs. 50,000 in lieu of confiscation, which the court found justified given the circumstances.

3. Validity of the Additional Collector of Customs' Order Dated 23rd August 1975:
The Additional Collector of Customs found that the vessel had 1,22,400 cigarettes on board when it arrived at Calcutta, with 45,000 cigarettes subsequently found missing. The respondent contended that the shortage was inconsequential compared to the entire imported cargo. However, the court upheld the Additional Collector's view that the missing 45,000 cigarettes constituted a substantial portion of the imported goods, justifying the vessel's liability for confiscation under Section 115(1)(e). The court also upheld the penalty of Rs. 10,000 imposed on Peter Sherazee under Section 112 of the Customs Act for improper importation.

4. Maintainability of the Application under Article 226 of the Constitution:
The respondent had sought relief under Article 226, challenging the Additional Collector's order. The court noted that the respondent had alternative remedies under the Customs Act but chose not to delve deeply into this argument, as it found the Additional Collector's order justified. Consequently, the court allowed the appeal, set aside the judgment and order of the learned Trial Judge, and discharged the Rule.

Conclusion:
The court concluded that the interpretation of "substantial portion" should be item-specific rather than referring to the totality of the cargo, aligning with the legislative intent to prevent smuggling. The Additional Collector's order was upheld, and the respondent's application under Article 226 was dismissed, emphasizing the availability of alternative remedies under the Customs Act. The appeal was allowed, and the judgment of the learned Trial Judge was set aside.