9911796707
TMI Blog1979 (5) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant orders would be Order No. 21 dated February 18, 1967, as passed by the Additional Collector of Customs, Calcutta; Order No. 492 of 1969, viz., the appellate order made in the connected appeal by the Central Board of Excise and Customs and Order No. 6A of 1971, which was the revisional order made by the Government of India. The orders relevant for the second case are Order No. 20 dated February 18, which was an order passed in the connected appeal the Central Board of Excise and Customs and Order No. 4A dated January 25, 1971, being the revisional order by the Government of India. For the purpose of effecting the spments of the concerned consignments, the petitioner appointed one S.A. Wahab, as clearing agent who again has been stated to be associated with one Sri Narayan Ghosh, a licensed Customs House Clearing Agent. 3. The material facts, relevant for the connected cases would be available from the facts as stated hereafter. By the said two consignments, the petitioner intended to ship out of India by "S.S. Slaoe" ivory art wears and ladies' plastic hand bags. He has stated that in or about the third week of May 1960, he intended to export out of India, the consignment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contained the goods as mentioned in the several shipping bills and not saw dust, as has been alleged now to be containing. The petitioner expressed his surprise as to how on the subsequent checking saw dust could be found out in those cases contained in the 25 consignments, when at least 9 of them were checked and found to be in order by proper Customs Officers. 4. Thereafter, the petitioner was served with 9 notices, all dated 24th, September, 1960, alleging that he had grossly misdeclared the description of the goods in the said consignments and as such, he had contravened the provisions of Section 137 of the Sea Customs Act, 1878 (hereinafter referred to as the Act), which is to the following effect :- "137. No goods, except passengers' baggage, shall be shipped or waterborne to be shipped for exportation until - (a) the owner has delivered to the Customs collector, or other proper officer, a shipping bill of such goods in duplicate, in such form and containing such particulars in addition to those specified in section 29 as may from time to time be prescribed by the Chief Customs Officer; (b) such owner has paid the duties (if any) payable on such goods; and (c) such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icers and the petitioner's representatives and as mentioned hereinbefore, were found to contain saw dust only. The answers to these notices were given by the petitioner on March 14, 1961, stating, inter alia, that since the consignments in question were physically examined by the Customs Officer, who were satisfied as to the nature and correctness of the export and thereafter, permitted them to be shipped on board the vessel "Siaoe", there was no cause or any occasion for issuing those notices against the petitioner and on the grounds as alleged. It was also contended by the petitioner that after the goods had been passed by the Customs Officers, he never handled them nor had he any occasion to do such handling when the goods were taken on board the vessel in question. These apart, the petitioner has contended that in the matter of having the goods shipped, he has duly and faithfully followed the normal procedure and practice. In short, he has alleged that he was not liable or responsible for any substitution and in fact, substitution, if any, was made without his knowledge or permission and the consignments containing saw dust did not belong to him. The petitioner further desired ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held and found the petitioner to be guilty of the contravention of the provisions of Sections 167(3) and 167(37) of the Act and imposed personal penalties of the concerned amount of Rs 18,000/- with a further fine of Rs. 25/- in respect of the consignment covered by each of the said shipping bill in lieu of confiscation under Section 163(37). 6. In respect of the second consignment, the particulars of the orders which have been mentioned herein before, it is stated that in or about May, 1960, the petitioner intended to export out of India 22 cases of ladies' plastic hand bags, for supply to Messrs. General Trading Company of Kualalampur, Malaya. It has been stated that to complete the transaction the petitioner gave instructions to the office staff, to make necessary arrangements for the concerned export. It is his case that on or about May 27, 1960, 22 cases were made ready for shipping by S.S. Siaoe's and in respect of those cases, he prepared or caused to be prepared 4 sets of shipping bills as mentioned in the petition. It has been stated that entries in the different shipping bills as made by or on his behalf, are correct. The petitioner has stated that he had instructed hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove. It appears that on June 1, 1960, some Customs Officers attended the petitioners office at 65, Chittaranjan Avenue, and, removed 24 packages bearing marks, numbers and contents and the petitioner has alleged that in fact in excess of the total number of the cases which he had intended to ship, had been removed and that too without making any inventory. Thereafter, the petitioner was served with 4 notices dated September 24, 1960, alleging that he had misdeclared the quantity and value of the goods in the shipping bills and as such, he had contravened the provisions of Section 137 of the Act and would be liable for punishment under Section 167(3) and Section 167(37) and he was further asked to explain the matter in writing within the stipulated time as to why the concerned goods should not be confiscated and penal action should not be taken against him. In the notices as mentioned above, it was alleged that the petitioner was responsible for unauthorised removal of the goods, which were water-borne for shipment, after the same had been tendered for shipment under the concerned shipping bills in the manner as disclosed hereinbefore. In reply, the petitioner on October 13, 1960 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mples had been drawn from the consignments, the goods which were on the cargo boat, were found to be missing and enquiries made revealed that the cases had been removed by one Srilal Poddar, an assistant of S.A. Wahab and the said cases had been made over to the petitioner at 65, Chittaranjan Avenue, Calcutta. In fact, it has been alleged that subsequently the concerned cases were made over to the Customs authorities and they were removed to the Customs House. It is further alleged that the contents of the cases, on examination, in the presence of the witnesses were found to be ladies' plastic hand bags, much less in quantities than what was declared in the shipping bills and in invoices. As such, the petitioner had misdeclared the quantity and value of the goods in contravention of Section 137 and would be punishable under Section 167(3) and 167(37) as mentioned above. It has also been alleged that on the basis of the contention of the petitioner and the recovery of the cases, prima facie, established the fact that they were tendered for shipment and thereafter, removed without proper permission and were, while water-borne, brought to the office of the petitioner with the alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inations mentioned above, admittedly two applications under Article 226 of the Constitution of India were moved before this Court and Rules being Matter Nos. 158 of 1962 and 156 of 1962 were obtained. Those Rules came up for hearing before D.N. Sinha J. (as His Lordship then was) on December 19, 1963 and His Lordship was pleased to set aside the concerned orders with further directions on the respondents for rehearing of the matters concerned on the basis of an agreed procedure arrived at between the parties before him. It appears that while making such orders, His Lordship was further pleased to direct that the subsequent or fresh adjudication as mentioned, should be completed within 8 months from December 19, 1963. The respondents could not complete such adjudication within the time allowed and as such on November 20, 1964, made applications for extension of time. Those applications were allowed by B.N. Banerjee J. (as His Lordship then was). Against such determination, the petitinner preferred appeals which were ultimately dismissed and from such dismissals, applications for grant of certificate to appeal to the Supreme Court were also made and were dismissed. It further appears ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter giving him option to redeem the said goods on payment of a fine of Rs. 2,000/-. By this order, the Additional Collector of Customs, respondent No. 1, further held that as far as Section 167(31) was concerned, it was not necessary to record any finding as no penal action was attracted under the provisions, as the goods were not dutiable. It has been claimed by the petitioner that the said respondent No. 1, having found that no action could be taken against him under Section 167(31) as aforesaid, could not have imposed any penalty under Section 167(37) or 167(3) of the Act. That apart, it has been stated there was neither any material nor any evidence, on the basis of which the respondent No. 1 could hold that there was any contravention of any of the provisions of the Act, apart from contending the order to be perverse and based on surmises and conjectures. 13. Being dissatisfied and aggrieved by the orders as mentioned above, the petitioner preferred appeals before the Central Board of Excise and Customs, respondent No. 2. By Order No. 492 of 1969 dated January 15, 1970 in respect of the said consignments covered by Order No. 21 of 1967, the said respondent No. 2 apparently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1971, all dated January 28, 1971. 15. The affidavit-in-opposition dated July 20, 1976 against the aforesaid facts and contentions, was filed by Sri Arun Kumar Dutt, the Additional Collector of Customs. The facts relating to the determination as mentioned hereinbefore are not in dispute. But the said deponent has denied the allegations of the petitioner that such determinations were perverse or of no materials or any evidence or the same was illegal and without jurisdiction. In fact, it has been contended that the orders, alter the revision in respect of both the consignments, were passed after due opportunities to the petitioner of being heard and to have his cases represented and on due consideration of evidence as was available and on proper application of mind. This deponent has imputed bad motive against the petitioner in the matter of effecting the shipments and has also alleged manipulations by him in the matter of substituting saw dust for the goods as were sought to be or required to be exported. In respect of the consignments covered by the 9 shipping bills, the deponent has stated that they were prepared by one S.A. Wahab and were filed in the export Department of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd it has been stated further that during the transitory period, when the subject goods were under the control and custody of the petitioner through his agents, the substitution was effected and the same was duly revealed on further checking and re-examination on board the ship. 17. It has further been alleged that during the material time, the petitioner was granted import trade control licence under the export promotion scheme, to import certain specific goods on execution of some undertaking that he would export processed/finished goods of equal value of the import made against the licence in question within a period of six months from the date of importation and it has been stated that since the petitioner was granted licence under the said scheme, there could be none except him to resort to the tactics as referred to hereinbefore and that too for the purpose of getting import licence by exporting nothing in the manner as stated hereinbefore. The deponent has stated that personal hearing, as was asked for, was given to the petitioner and during the course of such hearing, it was disclosed to him that the goods in question which were received on board the concerned vessel were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... numbers on the relevant shipping bills. In view of the above, the deponent has stated that the cases made over voluntarily, excepting the 2 as mentioned above, were not the cases tendered for shipment. It has been admitted that on June 1, 1960, the export Appraiser passed necessary orders but before any check could be made according to such order, the petitioner removed the 22 cases in question without any information to the attached Customs Officer for such removal. The story that the 22 cases, which were removed, were loaded on the board by mistake, has been claimed to be a device for the purpose of misleading all concerned and resorted to with ill motive of substituting the goods sought to be exported by saw dust. This act of removing the goods without notice, knowledge or intimation to the appropriate officer has been claimed by the deponent to be improper, motivated and irregular. As such, the deponent has stated that there was mis-declaration of the quantity and value of the goods sought to be shipped in the shipping bills. 19. The deponent has stated further that due opportunities and personal hearing having been given to the petitioner and since there was no violation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken the necessary and required steps and as such there was no violation or any infraction of the said section. It is also true that Section 167 provides for penalty in respect of contravention of the provisions of Section 137 and under the sub-section (37) of Section 167, goods are liable to confiscation and the person concerned is liable to pay a penalty not exceeding Rs. 1,000/-, if fit is found that goods have entered the Customs House for exportation with mis-statement in regard to sort, quantity or value and under Section 167(3), if any person has shipped goods or aided in shipment of them or knowingly kept or concealed any goods shipped or intended to be shipped, contrary to the provisions of the Act, then he shall be liable to penalty not exceeding Rs. 1,000/-. 22. In view of the above and the pleadings as mentioned, Mr. Bajoria, appearing in support of the Rule contended that since there was no material or evidence, on the basis whereof, violation or contravention of Section 137 could be established, the petitioner was not liable to any action under Sections 167(3) and 167(37). In any event, he submitted that there was no contravention of Section 137, rather the requirem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation has also been explained by Mr. Bajoria on a reference to the statements made in paragraph 27 of the petition, which after hearing the learned Advocates, appears to be reasonable and as such, I hold that the petition would not be hit by the principles as urged by Mr. Kar and the same would be maintainable and can be entertained : 24. On the question of onus and to establish his contention as mentioned above, and also the sections as penal, Mr. Bajoria referred to the determinations of this Court in the case of Manicklal Sen and Anr. v. Additional Collector of Customs and Anr., A.I.R. 1965 Calcutta 527. In that case, it has been observed that..... "The Sea Customs Act deals with offences which carry punishment of confiscation or fine. The offences and the adjudication thereof, including conviction and punishment, are all of penal nature. Such proceedings are, therefore, in the nature of criminal proceedings. The general Rule relating to all criminal proceedings is that a criminal charge has to be established by the prosecution to the hilt and the burden of proof is never on the accused. This fundamental principle of the burden of proof in criminal proceedings can only be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tended by Mr. Bajoria that in view of the admitted fact that the petitioner was given such benefit or advantage, the orders as made, cannot be sustained. 25. These apart, Mr. Bajoria contended that the orders as impleaded and more particularly the order on revision, not having duly dealt with or considered all aspects, they should also be quashed and set aside. 26. Mr. Kar, appearing for the answering respondents after placing the cause title, the grounds and the reliefs claimed, contended that since the Sea Customs Act, 1878, after the incorporation of the Customs Act, 1962, has become non est, so no interference in these proceedings can or should be made. He also, as a preliminary point argued, that since the order of the Additional Collector concerned has merged in the orders by the Central Board and the Central Government and they were made at Delhi, i.e., outside the territorial jurisdiction of this Court, so such orders cannot be interfered with by this Court. It was also contended by Mr. Kar that since the determinations of the issues involved in this case, would require an investigation into disputed questions of fact or such questions, which would depend on evidence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll subscribe a declaration of the truth of such statement at the foot of such bill." In case of doubt, the Customs Collector may require any such owner or any other person in possession of any invoice, broker's note, policy of insurance or other document, whereby the real value, quantity or description of any such goods can be ascertained, to produce the same, and to furnish any information relating to such value, quantity or description which it is in his power to furnish, and thereupon such person shall produce such document and furnish such information : Provided that, if the owner makes and subscribes a declaration before the Customs Collector, to the effect that he is unable, for want of full information to state the real value or contents of any case, package or parcel of goods, then the Customs Collector shall permit him, previous to the entry thereof, (1) to open such case, package or parcel, and examine the contents in presence of an officer of Customs, or (2) to deposit such case, package or parcel in a public warehouse appointed under section 15 without warehousing the same, pending the production of such information." "137. No goods, except passengers' baggage, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y bond ordered or any other thing done or any other action taken under any repealed enactment shall, so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provision of this Act; (b) any document referring to any enactment hereby repealed shall be construed as referring to this or to the corresponding provision of this Act. (4) This Act shall apply to all goods which are subject to the control of customs at the commencement of this notwithstanding that the goods were imported before such commencement. (5) Where the period prescribed for any application, appeal, revision or other proceeding under any repealed enactment had expired on or before the commencement of this Act, nothing in this shall be construed as enabling any such application, appeal or revision to be made on or a proceeding to be instituted under this Act by reason only of the fact that a longer period therefor is prescribed or provision is made for extension of time in suitable cases by the appropriate authority. (6) The provisions of Section 65 shall apply to goods warehoused before the commencement of this Act if the operations permissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed." should be pertinent and necessary, so also the provision of Section 155 of the Customs Act, 1962, which deals with protection of action taken under the same and to effect that - "(1) No suit, prosecution or other legal proceeding shall lie against the Central Government or any officer of the Government or a local authority for anything which is done, or intended to be done in good faith, in pursuance of this Act or the Rule s or regulations. (2) No proceeding other than a suit shall be commenced against the Central Government or any officer of the Government or a local authority for anything purporting to be done in pursuance of this Act without giving the Central Government or such officer a month's previous notice in writing of the intended proceeding and of the cause thereof, or after the expiration of three months from the accrual of such cause." 28. The orders as impeached in this case were all made or passed after the incorporation and coming into force of the Customs Act, 1962 on February 1, 1963, and as such the initiation itself and the determinations that fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on such suspicion, particularly when mere suspicion is no proof of the offence. In view of the above and more particularly when the proceedings for confiscation are of quasi criminal nature, the onus to prove the commission of the offence was on the respondents, and they have, in my view, failed to discharge such onus. In fact, however bad and improper the conduct of the petitioner may be, substitution said to be effected by him has not been proved or established beyond any reasonable doubt. I am also of the view that even if the petitioner is guilty of substitution of the goods, he was certainly aided, helped and assisted by the officers under the respondents. I further find that there was apparent fulfilment of the requirements of Section 137 and as such, ordinarily proceedings under Section 167(3) could not be maintained and no penalty could thus be imposed thereunder. This apart, when it has admittedly been found that the petitioner was not guilty of Section 137, he could not also be penalised under Section 167(37). 31. In view of the above, this application must succeed and I order accordingly. The Rule is thus made absolute. There will be no order as to costs. - - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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