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TMI Blog1938 (8) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... f's case is that they were still within the precincts of the Customs House, awaiting examination. When the packages were examined they were found to contain dutiable silk goods of considerable value. The packages were admittedly part of the B consignment, and the Customs House Authorities suggest that what the plaintiff's agent was doing was attempting to remove them without paying duty, under cover of the bill of entry relating to the B consignment, the contents of which were either not dutiable at all, or only dutiable to a trifling extent. 2. Subsequently the plaintiff received a notice to show cause why the goods in the packages which had been seized should not be confiscated and a penalty imposed on him under Section 167 (37)(c) and (38), Sea Customs Act, 1878. An enquiry followed, and on 11th July 1935 the second defendant in his capacity as Collector of Customs passed an order for confiscation of the goods under Section 167(37) of the Act subject to a redemption penalty of ₹ 3500, and imposed a penalty of ₹ 4000 under Section 167(38). Section 167 creates certain offences against the Act, and provides maximum punishments for committing them. Under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l modified the Collector's decision by setting aside the penalty, although he upheld the order for confiscation. The Governor-General's order stated that he was satisfied that the goods were removed from the Customs House with the intention of defrauding the revenue. He was of opinion however that the facts did not fall under item 37 or 38 of Section 167, and that the imposition of a penalty under item 38 was therefore not justified. In upholding the order for confiscation he stated that; it should have been passed under Section 167(36), which provided that if after any goods have been landed, and before they have been passed through the Customs House, the owner removes them or attempts to remove them, with the intention of defrauding the revenue, such goods shall be liable to confiscation. 4. The plaintiff challenges the legality of this order, and he states that no offence under Section 167(36) had been committed, that he had never been charged under Section 167(36), nor had he been called upon to meet or answer any such charge. Further there was no, or alternatively no proper, adjudication arrived at in the manner provided by the Sea Customs Act, and the proceedings w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tra vires, from the jurisdiction of the Madras High Court. This question is however academic in view of Section 106(2), Government of India Act, 1915, and Section 226(1), Government of India Act, 1935. These sub-sections run as follows: 106(2). The High Courts have not and may not exercise any original jurisdiction in any matter concerning the revenue, or concerning any act ordered or done in the collection thereof according to the usage and practice of the country or the law for the time being in force. 226(1). Until otherwise provided by Act of the appropriate Legislature, no High Court shall have any original jurisdiction in any matter concerning the revenue, or concerning any act ordered or done in the collection thereof concerning to the usage and practice of the country or the law for the time being in force. 7. It is admitted that for the purposes of the present case the sub-sections may be regarded as identical. As the Advocate-General points out, there is direct authority on the matter in Madras: see Govindarajulu Naidu v. Secy. of State A.I.R. (1927) Mad. 689. In that case certain goods belonging to the plaintiff were seized by the Customs Authorities, and the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a collection of part of the revenue of the country and I am prepared to hold that the sale of seized and confiscated goods and the taking by the customs authorities of those proceeds is the collection of customs and therefore of revenue. It is admitted by Mr. Narasimha Ayyar that penalties in the shape of double or treble imposed on smuggled goods would be revenue. It he contends that the money derived from the sale of seized or confiscated goods is not. I cannot myself Bee any distinction whatever. I may conjecture that one of the objects of the sale is to recoup the customs for the unpaid duty which, had it been paid, would have been revenue. But there is another obvious reason for this penalty and it is this: persons who bring dutiable goods into the country are required to declare their possession of them and to pay the proper duty which is then collected from them and becomes part of the revenue of the country. That is clearly the collection of revenue. If, however, persons smuggle dutiable goods into the country they prevent the collection of the duties and so the revenue. The object of the seizure and confiscation is two-fold, to punish the offender and to deter others f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide of the Bombay High Court had jurisdiction to try it. The Advocate-General had not attempted to argue that these two suits were not matters concerning the revenue, but he says that as the point was not raised, Government must be taken in each case to have deliberately waived it with a view to obtaining an authoritative and final decision on the question of construction. In the report of the ford Motor Company's case in Ford Motor Co. of India Ltd. v. Secy. of State that it was agreed that) the defendant would waive certain technicalities with a view to a speedy decision of the case. Whether one of them was the question of jurisdiction I have no means of saying. It must be borne in mind however that cases are only authorities for what is actually decided, and not for propositions which appear to follow logically there from. I feel I cannot from the fact that the Privy Council restored a decree made on the Original Side of High Court of Bombay drew an inference that it thereby decided that) the suit was competent, when the question of jurisdiction was not in issue. 10. Mr. Mukherjee next submits that this is not a matter concerning the revenue but rather concerning an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bombay, they would equally be entitled to succeed, if the statute and the charters contained no exception or proviso for their protection. Our books actually swarm with decisions putting a contrary construction upon such enactments, and there can be no rule more firmly established, than that if parties bona fide and not absurdly believe that they are acting in pursuance of statutes, and according to law, they are entitled to the special protection which the Legislature intended for them, although they have done an illegal act, It is not suggested in this case that, the Collector of Madras or the Secretary of State acted mala fide or purported to seek the protection, of the statute with the full knowledge that all that was being done was to commit a mere act of aggression. Whether they were right or wrong, they thought clearly and honestly that they were taking advantage of the provisions which the statute allowed them to take advantage of, in terminating this agreement. I am therefore compelled to hold that this Court had no jurisdiction, to entertain this suit. 11. I think similar observations are applicable to the case before me. None of the very vague statements in the plain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver more important is that learned Counsel for the plaintiff was constrained to admit that, although he was prepared to criticize the conduct of the proceedings before the Collector, he could not point to anything improper or unjudicial in the scanner in which the Board exercised the jurisdiction conferred on it by Section 188. 13. The order passed by the Governor-General in Council under Section 191 of the Act on be briefly dealt with. I incline to the view that orders made under this Section Joan, in no case, be questioned in the Civil Courts, except possibly orders which while purporting to be made under it are clearly outside it. An order by the Governor-General in Council enhancing penalty would in my opinion possibly be such an order. Generally speaking however what the Section contemplates are revisional orders of an executive character. It should be pointed out that the order of confiscation is the order of the Collector and not the order of the Governor-General in Council. It is true that in upholding it the revising authority expressed the opinion that it should have' been made under Section 167(36) and not under Section 167(37). This observation has enabled the pl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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