9911796707
TMI Blog1991 (3) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... 893 of 1976 - - - Dated:- 13-3-1991 - N.M. Kasliwal K. Ramaswamy, JJ. [Judgment per : Kasliwal, J.]. — This Appeal by Special Leave is directed against the judgment of Calcutta High Court dated 6th February, 1975 setting aside the order of the Learned Single Judge of the High Court dated 9th June, 1972. 2. Brief facts of the case are that M/s. Toolsidass Jewraj (hereinafter referred to as the 'petitioner firm') had been carrying on the business of export of Jute goods from India to foreign countries including United States. The petitioner firm entered into contracts on December 19, 1961 for shipment in January, 1962 of Jute goods to M/s Franc Samuel and Co. of New York, through their agents M/s. C.J. Dammann Inc. of New York, U.S.A. According to the petitioner firm in January, 1962 the price of Jute goods appreciated considerably and to avoid severe losses the petitioner firm through the said agent arranged for switching the shipment over to April/June, 1962. The petitioner firm thereafter made arrangements for shipment of a consignment of 435 bales of Hessian Cloth by s.s. "City of Singapore' and submitted shipping bills alongwith G.R.-I Forms with the Customs author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shippers were liable to personal penalty under the aforesaid Sections and also under Sec. 167(37) of the Customs Act. The Additional Collector of Customs by his order dated June 6,1962 gave the following directions: "In view of the foregoing, I confiscate the goods in question under Section 167(8) of the Sea Customs Act, read with Section 23A of Foreign Exchange Regulation Act. In lieu of confiscation, I impose fine of Rs. 3,00,000/- (Rupees three lakhs only). The fine should be paid within a week hereof. A personal penalty of Rs. 50,000/- (Rupees fifty thousand only) is also imposed on the shippers under Section 167(8) of the Sea Customs Act. The personal penalty should be paid within three days of the receipt of this order." 4. The petitioner firm preferred an appeal against the said order to the Central Board of Revenue which by its order of December 10,1963 affirmed the findings and order of the Additional Collector. The Board, however, felt that the fine of Rs. 3,00,000/- in lieu of confiscation was rather excessive and accordingly reduced the fine to Rs. 1,85,000/- and directed the refund of Rs. 1,15,000/- which the petitioner has received without prejudice. The petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roughly considered the record and have perused the cases on which reliance is placed by the learned counsel for the appellant. In our view the facts of the case before us totally distinguishable and as such the above mentioned cases do not help the appellant. The facts of the case as found by the Additional Collector of Customs are that the petitioner firm had initially entered into four contracts dated December 19,1961 for supply of Jute goods to M/s. Franc Samuel and Co. of New York for shipment in January, 1962. In January, 1962 the price of Jute goods appreciated and the petitioner firm arranged for switching the shipment over to April/June 1962. The petitioner thereafter made arrangements for shipment of a consignment of 435 bales of Hessian Cloth by s.s. "City of Singapore" and submitted shipping bills alongwith G.R.-l forms with the Customs authorities on June 1,1962. The full export value of goods was not correctly stated in the above documents. On June 5,1962 M.V. Ashar appeared on behalf of the petitioner firm and submitted a letter mentioning therein that the firm did not want any show cause memo and would agree to abide by the decision of Customs authorities. The petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atka" business. The Additional Collector further held that the shippers appeared to be conscious that they could not remit the profits legally and hence they had to harness into service the medium of export business in this connection. The F.O.B. values declared by the shippers in the G.R. forms were, on their own admission, incorrect and the object of these incorrect declarations was unethical and otherwise highly objectionable on more than one ground of economics. It was not assailed at any stage of proceedings, not even before us that the actual market price of the goods in question in June, 1962 was 867d. and the value mentioned in the shipping bills and G.R. forms was shown as 802d. 7. So far as the cases of this Court in Union of India Ors. v. M/s. Rai Bahadur Shree Ram Durga Prasad (P) Ltd. Ors. (supra) and Becker Gray Co. (1930) Ltd. Ors. v. Union of India Anr. (supra) are concerned, were cases wherein the controversy had arisen after the export of goods. In that context in Union of India Ors. v. M/s. Rai Bahadur Shree Ram Durga Prasad (P) Ltd. Ors. (supra) the Court observed as under: "If we are to hold that every declaration which does not state accurate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a sort of "phatka" business was being carried on by the so-called consignee abroad and the shippers in India were playing the role of brokers and in that role they had undertaken to remit to them invisibly the profits earned out of "phatka" business. It had been further held that the shippers appeared to be conscious that they could not remit profits legally and hence they had to harness into service the medium of export business in this connection. The above facts clearly disclose that the petitioner firm had made an attempt to remit the profits to the consignees by discounting the profit of 79d. from the sale price and thus declaring the export value of the goods at a lower value. The above device was detected even before the export of goods. Thus, in our view, the present case stands on totally different circumstances and the ratio of the above mentioned cases of this Court cannot be applied to the case in hand before us. The learned Judges of the Division Bench of the High Court had correctly distinguished the above cases and we find no reason to take a different view. In the result we find no force in this appeal and it is accordingly dismissed with costs. - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
