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TMI Blog1989 (12) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... d persons, it was gathered that the said Mohan Samtani was associated with the State Trading Corporation of Sikkim. A watch was therefore maintained keeping in view the nature of information received as mentioned above. On 27-3-1973 a duplicate shipping bill No. AEF 235 dated 6-1-1973 relating to two packages on account of the State Trading Corporation of Sikkim was presented at Calcutta Airport along with two cases booked under airway bill No. 061-11947854 dated 22-3-1973 for shipment by B.O.A.C. against the said shipping bill. The description of the packages in the S/B was shown as unaccompanied personal effects of His Majesty The Chogyal P.T. Namgyal of Sikkim. Books, etc. having declared gross weight as 160 Kgs. and net 135 Kgs. It was further certified in the shipping bill that the consignment does not contain arms, ammunition or antiques, rationed articles or any other items which is restricted and having no commercial value as no transaction in foreign exchange was involved. The market price of the consignment was declared as Rs. 150/-. A declaration as to the truth of the declaration was also subscribed by the representative on behalf of the State Trading Corporation of Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be handed over to the representative of State Trading Corporation of Sikkim for onward transmission to the Gangtok office. Shri Mohan B. Samtani appeared at this Custom House on 8-6-1973 and made a Statement pursuant to the Summons issued under Sec. 108 of the Customs Act, 1962, inter alia, to the effect that the shipping bill No. AEF 235 dated 6-1-1973 was processed by M/s. Orient Transport Co. at his instance and the certificate attached to the shipping bill saying that the two packages contained personal effect namely books, etc. belonging to his Majesty the Chogyal of Sikkim was subscribed and endorsed by him that the two packages were brought by Shri Bharat Singh A.D.C. of the Chogyal sometime around 16th or 17th May, 1973 and was stored at the latter s flat at No. 4, Wood Street, Calcutta. From his recollection he gave description of the wooden crates stating that he had deputed his office peon, Basana to carry the shipping bill and the packages to the B.O.A.C. city booking office. On an inspection of the duplicate shipping bill he contended that the initials on the shipping bill under the column for quantity had not been done by any one of his office staff nor he gave anyt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one else to look after that flat. 5. Thereafter, voluntary statements of (a) Shri Pratic Kumar Sen, Partner of M/s. Orient Transport Company; (b) Shri Balaram Behera, a caretaker of a flat at Wood Street; (c) Shri P.C. Sanyal, Superintendent of State Trading Corporation; (d) Basanta Sen of Orient Transport Company; (e) Subir Mazumdar, Car Driver of State Trading Corporation; (f) N.G. Mitra, Cargo Assistant of M/s. B.O.A.C.; (g) Pradip Kumar Sengupta of M/s. Orient Transport Co.; (h) Shri S. Rangan, Station Assistant B.O.A.C.; (i) Shri T.P. Pal Choudhury, representative of State Trading Corporation of Sikkim - were recorded under Section 108 of the Customs Act, 1962 by the Competent Officers and investigation proceeded. Thereafter, His Highness Chogyal of Sikkim wrote a letter to Collector of Customs, Calcutta on 4-6-1973 requesting him to release the packages. A show cause notice dated 15-4-1974 was issued to the appellant and the State Trading Corporation of Sikkim and M/s. Orient Transport Company calling upon them to explain the matter in writing and to show cause why the Antiques seized should not be confiscated under Section 113(d) and (h) of the Customs Act, 1962 and why pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trol) Act, 1947 could not continue to operate after the enactment of Customs Act, 1962. It was, further, extended when the Chogyal of Sikkim became an ordinary citizen of India since the cession of Sikkim within India, a show cause notice should have been issued to him and the confiscation of the goods without such a notice is bad in law. 7. It was further contended that principles of natural justice are violated in this case, inasmuch as the copies of statements of witnesses were not handed over to appellant and that he was not allowed to cross-examine the witnessess. The learned Advocate for appellant leaned heavily on the fact that the very show cause notice suffers from infirmity on the ground that the idol and pedestal were proposed to be confiscated under the Customs Act, 1962 read with Sec. 4 of the Antiquities (Export Control) Act, 1947; when in fact on the relevant date by virtue of Section 32(1) of the Antiquities and Treasure Act, 1972 (Act, 52/72), the Antiquities (Export Control) Act, 1947 was expressly repealed. It was his contention that the 1972 Act came into force on 11th September, 1972, whereas the show cause notice was issued on the 15th April, 1974 and as suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the back of appellant without giving an opportunity to examine them has clearly violated the principles of natural justice and thus the impugned order is liable to be set aside with consequential relief. 11. In view of the above rival contentions the following points arise for our determination. (i) Whether the Chogyal of Sikkim is entitled for immunity from the Customs Laws and other law of the Government of India; (ii) If so, whether the Nataraja Idol and Pedestal in question can be said to belong to his Highness, the then Chogyal of Sikkim; (iii) Whether the principles of natural justice are violated in this case, thus rendering the impugned orders invalid; (iv) Whether the show cause notice issued in the case is not in accordance with law and consequently the confiscation order is vitiated; (v) Whether there are any grounds made out to interfere with the impugned order. 12. Point No. (i): It was the contention of the learned Advocate, Shri Mookherjee appearing for the appellant that during the relevant time of seizure Sikkim was an independent state and under Article 372(1) of the Constitution of India, Sikkim became a part of Indian only from 26-4-19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sikkim at the relevant time of seizure being the head of a Princely State was entitled to immunity from the Indian Laws. In the same decision again at page-230 their Lordships observed as follows: Indian Rulers and Rulers of States with similar powers to Indian rulers have always been regarded by courts in England as beyond their jurisdiction. Again at page-231 their Lordships further observed It is clear, therefore, from these cases that English Courts have treated Indian Rulers as independent and entitled to the privileges granted to such rulers by international law. It was also contended that though this point was not taken specifically before the Departmental Authorities this being a question affecting the jurisdiction of the proceedings themselves could be taken up even before this Tribunal as the appellant had raised this ground as additional ground by way of a separate application. 14. In this connection, reliance was placed on a decision reported in 1954-SCA-page-725 (Kiran Singh and Others v. Chaman Paswan and Others) wherein at page-728 the Supreme Court held as follows: It is a fundamental principle well-established that a decree passed by the Court w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal was his property and that he was exporting it to New York. Hence it takes us to the second point for determination as to whether it was his Highness the Chogyal of Sikkim who was the owner of goods at the relevant time of its seizure and if so whether the immunity can be extended to him even though the Adjudication Proceedings were even at a time when he became an ordinary citizen of India by virtue of Sikkim s cession with India. 16. Point No. (ii) : As far as this point is concerned the Learned Advocate Shri N. Mookherjee appearing for the appellant strenuously contended that the Chogyal of Sikkim was the owner of goods (Nataraja idol and pedestal) during the relevant point of time. Alternatively, it was his contention that even assuming that the adjudication was done after the date of cession of Sikkim with the Indian Union, and at a time when the Chogyal had become an ordinary citizen of India, still the confiscation of the idol and pedestal is illegal as no show cause notice was given to the Chogyal, before its confiscation. Let us therefore advert ourselves to the most crucial point for determination of this appeal to the effect as to whether there are materials availab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under-secretary of Chogyal. He also stated that thereafter he demanded back this letter and appellant postponed it on some pretext or other and never returned it to him. Therefore, this letter dated 15-3-1973 is contradicted by its own author and there is no reason to doubt the veracity of this statement as it is corroborated by other statements and circumstances in this case. 19. The statement of Shri Subir Mazumdar, an employee under the appellant, who was also driving his car assumes great importance in this case. The appellant himself in his statement dated 21-6-1973 stated as follows: These packages were brought by the A.D.C. of the Chogyal in Calcutta sometimes on 16th or 17th March, 1973. He came by Darjeeling Mail ................I recollect that my driver Shri Subir Mazumdar was sent to bring the packages from Sealdah Station with my ambassador car." He also stated that from these packages the Nataraja Idol and Pedestal were recovered. But this statement of appellant is contradicted by his driver Subir Mazumdar who stated in his statement dated 11-6-1973 that when he went to receive Bharat Singh when he came by Darjeeling Mail during March, 1973 he had brought onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contents thereof. This statement of the appellant is highly contradictory. If he does not know the contents of the packages he would have simply certified them as the personal belongings of Chogyal. There was no occasion for him then to certify that it contains books and does not contain arms, ammunition, antiques etc. This goes to show that he knows its contents as antiques and he suppressed it by declaring that it does not contain antiques and used the name of the Chogyal of Sikkim, in a clever manner, and tried to shield him by inventing several theories and by manufacturing the letter dated 15th March, 1973 as stated by Shri Palchoudhury. But in the process of telling these lies the truth has come out that these two packages belong to him and he was exporting it by using the name of Chogyal of Sikkim. That is why, even though Chogyal of Sikkim claimed two packages as belonging to him in the first instance, by his letter dated 4-6-1983 he never claimed it later till this day when it was found on 8-6-1983 that these two packages contained the Nataraja idol and pedestal in question. It is, therefore, obvious that the Chogyal of Sikkim might have claimed some other packag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to him. At no time, did he seek for the cross-examination of any of the witnesses and it does not now lie in the mouth of the appellant to contend that he was denied of the opportunity to cross-examine the witnesses. The copies of statements having been supplied to him and in the absence of any request by him to give opportunity to cross-examine any witnesses, it cannot be said that there is any violation of the principles of natural justice. On the contrary the appellant himself submitted in the reply to show cause notice as well as before the Board that he pleaded guilty to the charges, in this connection, before criminal court and he was convicted accordingly. This goes to show that he himself pleaded guilty to the charges of smuggling the antiquities out of India and this admission is the best piece of evidence against him to prove his guilt. The argument of the learned advocate that he was tempted to plead guilty by the authorities has no force. After all, appellant is a highly educated person with a good status in life and it is not his case that he was coerced or threatened. He cannot thus be allowed to blow hot and cold at the same time. Thus it is clear that there is no v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uity, and it is only the Central Government or any authority or agency authorised by the Central Government who can export the same, that too, in accordance with the terms and conditions of a permit issued for the purpose by the prescribed authority. Therefore, the Act of 1972 is stricter as it totally prohibits the export of antiquity by any person. In such circumstances, merely because the wrong Act was quoted in the show cause notice there is no prejudice caused to the appellant, for the simple reason that under both the Acts the export of antiquity is prohibited. It is not the case of the appellant that he has any licence in this behalf as prescribed under Sec. 3 of the 1947 Act. In such circumstances, the decision reported in 1978 (2) E.L.T. (J 355p.) (in the case of J.K. Steel Ltd. v. Union of India) becomes relevant it is held in the above decision, by the Supreme Court as follows : If the exercise of a power can be traced to a legitimate source, the fact that the same was purported to have been exercised under a different power does not vitiate the exercise of power in question. This is a well-settled proposition of law......The incorrect statement in the written demand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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