1968 (11) TMI 71 - SC - Companies Law

Whether on the facts set out in the show cause notices, which facts have to be assumed to be correct for the purpose of these proceedings, the respondents can be held to have contravened section 12(1)? Held that - The fact that the exporter may be proceeded under section 12(2) for non-payment of the full amount payable by the foreign buyer, or that the Reserve Bank can in the eventualities mentioned in section 12(5) require the holding up of shipping documents or that the Reserve Bank by exercising powers under section 12(6) secure contracts and other evidence to discover the full amount payable do not throw any light on the construction of section 23A and section 12(1) except that the legislature is anxious that the full export value shall be received in this country. Section 23A read with section 12(1) calls in aid of customs authorities to achieve the same object, but ropes in along with the exporter the persons concerned in the prohibited export. Unable to appreciate how the existence of section 167(37), section 167(72) and section 167(81) is of any assistance for the purpose of interpreting section 23A and section 12(1) of the Exchange Act. It may be I do not decide it that an exporter, like the respondents, will also be liable to be proceeded against under these items of section 167. Taking the facts as alleged by the customs authorities to be true, as they must be taken to be true for the purpose of this application under article 226, it seems to me that no case for the issue of a writ of prohibition has been made out. In the result the judgment of the appeal court is reversed and that of the learned single judge restored.

Issues Involved:
1. Meaning of "restrictions imposed by sub-section (1) of section 12" in section 23-A of the Foreign Exchange Regulation Act.
2. Interpretation of the declaration requirement under section 12(1) of the Foreign Exchange Regulation Act.
3. Whether a contravention of section 12(1) also implicates other provisions of the Foreign Exchange Regulation Act.

Issue-Wise Detailed Analysis:

1. Meaning of "restrictions imposed by sub-section (1) of section 12" in section 23-A of the Foreign Exchange Regulation Act:
The court examined whether the restrictions imposed under section 12(1) of the Foreign Exchange Regulation Act (FERA) include those imposed by rules made under the Act. It was held that the restrictions imposed by section 12(1) cannot differ for the purposes of the Exchange Act and the Sea Customs Act. The court concluded that restrictions imposed by rules referable to section 12(1) must be treated as restrictions imposed by section 12(1) itself. This interpretation was supported by the principle that regulations made under an Act become part of the Act for enforcement purposes.

2. Interpretation of the declaration requirement under section 12(1) of the Foreign Exchange Regulation Act:
The court discussed whether the declaration under section 12(1) must be made honestly and in good faith, and whether it must disclose the true export value. It was held that section 12(1) requires a declaration of an actual figure representing the full export value. A declaration must be made in good faith, and a deliberately false declaration constitutes a contravention of section 12(1). The court emphasized that clerical mistakes and bona fide errors are not within the mischief of section 12(1), but deliberate falsehoods and evasion are.

3. Whether a contravention of section 12(1) also implicates other provisions of the Foreign Exchange Regulation Act:
The court considered whether actions that contravene section 12(1) also violate other provisions of the Exchange Act, such as sections 22, 23, 12(2), 12(3), and 12(5). It was concluded that a deliberate false declaration under section 12(1) also implicates section 167(8) of the Sea Customs Act. The court noted that the same contravention could attract penalties under both the Sea Customs Act and the Exchange Act. The court rejected the argument that the Foreign Exchange Act's basic policy excludes punishment under the Sea Customs Act, emphasizing that section 23A of the Exchange Act deems restrictions under section 12(1) to be imposed under section 19 of the Sea Customs Act.

Separate Judgments:
Majority Judgment:
The majority held that the declarations given by the respondents satisfied the requirements of section 12(1) of the Foreign Exchange Regulation Act, even though they did not correctly furnish all the information. The declarations could not be considered non-est, and the contravention complained of was a violation of section 12(2) and rule 5, punishable under section 23 and section 22. The court emphasized that section 12(1) is a penal section and should be construed strictly, avoiding unnecessary hardship in numerous cases. The appeals were dismissed, and the judgment of the appellate Bench of the Madras High Court was upheld.

Dissenting Judgment:
The dissenting opinion held that a deliberate false declaration under section 12(1) constitutes a contravention of the section, implicating section 167(8) of the Sea Customs Act. The dissent emphasized that the declaration must be made in good faith, and a deliberate falsehood is a breach of the conditional prohibition under section 12(1). The dissenting judge argued that the same contravention could attract penalties under both the Sea Customs Act and the Exchange Act, and the exporter and persons concerned in the export could be liable under both Acts. The judgment of the appellate Bench was reversed, and the judgment of the learned single judge was restored.

Conclusion:
The appeals were dismissed with costs, and the judgment of the appellate Bench of the Madras High Court was upheld by the majority opinion. The dissenting opinion favored reversing the appellate Bench's judgment and restoring the learned single judge's decision.

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