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TMI Blog1957 (8) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... toms Act of 1878. He held that offences under Section 167 (8) and Section 167 (37) (c) of the Act had been committed by the Company in respect of each of these consignments. He ordered in each case the confiscation of the goods under Section 167 (8). Under the provisions of Section 183 he was under an obligation to give to the Company an option of payment of fine in lieu of confiscation. He therefore gave an option to the Company, in lieu of confiscation, of payment of a fine of ₹ 22,918/- in one case and of ₹ 16,000/-in the other. He also imposed a penalty of ₹ 500/- on the Company in respect of the offence under Section 167 (37) (c) of the Sea Customs Act in each of the aforesaid cases. The Company appealed therefrom to the Central Board of Revenue being the Chief Customs authority under the Act. in the month of January 1954, the Central Board of Revenue set aside the order of confiscation and the imposition of a fine in lieu of confiscation in both the cases. The Central Board of Revenue instead ordered the Company to pay a penalty of ₹ 22,918/- in one case and ₹ 16,000/- in the other in respect of the offence under Section 167 (8) of the Sea Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the said person which may be in his charge or in the charge of any other officer of Customs. When an officer of Customs who had adjudged a penalty or increased rate of duty against any person under this Act is unable to realise the unpaid amount thereof from such goods, such officer may notify in writing to any Magistrate within the local limits of whose jurisdiction such person or any goods belonging to him may be, the name and residence of the said person and the amount of penalty or increased rate of duty unrecovered; and such Magistrate shall thereupon proceed to enforce payment of the said amount in the manner as if such penalty or increased rate has been a fine Inflicted by himself. 4. it is not disputed that the Central Board of Revenue is nob an Officer of Customs within the meaning of this section. What is urged by Mr. Rege, the learned counsel for the opponent, is that the penalty should be deemed in each of these cases to have been adjudged by the Customs Collector even though the order has been passed by the Central Board of Revenue as the Chief Customs Authority. He says that in order to interpret correctly the provisions of Section 193, we must consider th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l should have the effect of subjecting any person to any greater confiscation, penalty or rate of duty than had been adjudged against him in the original decision or order. The effect of Section 188 is that it is not open to the appellate authority to impose a penalty when no such penalty had been imposed by the order from which the appeal has been preferred. 5. Then come the provisions of Section 190. Under that section it is provided that if upon the consideration of the circumstances under which any penalty, increased rate of duty or confiscation has been adjudged by an Officer of Customs, the Chief Customs Authority is of opinion that such penalty, increased rate or confiscation ought to be remitted in whole or in part, or commuted, such authority may remit the same or any portion thereof, or may, with the consent of the owner of any goods ordered to be confiscated, commute the order of confiscation to a penalty not exceeding the value of such goods. In a case where an order of confiscation has been passed, if the appellate authority desires to commute that order and substitute in its place an order for levy of a penalty, then such an order can only be passed with the consen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f duty. It is he, who is given the power to realise the amount thereof by sale of any goods that may be in his charge or in the charge of any other officers of Customs. It is he who has to notify to the Magistrate the amount which he is unable to realise by means of sale of goods in his charge or in the charge of any other officer of Customs. Before the appellate authority interferes in appeal, the amount of penalty or the increased rate of duty adjudged by the Customs Officer is either realised or is deposited under the provisions of the Act referred to above. 10. We have here to consider a case where penalty has been levied for the first time by the appellate authority under the provisions of Section 190. On a Plain reading of Section 193, it appears to us that it is only where a penalty is adjudged against a person by any officer of Customs and when such officer is unable to realise the unpaid amount of such penalty from any goods in his charge or in the charge or any other officer of Customs, that he can notify to the Magistrate referred to in that section the unrealised amount of such penalty for the purpose of recovery. It cannot be said that any penalty for the first time ..... X X X X Extracts X X X X X X X X Extracts X X X X
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