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TMI Blog1958 (6) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, from the internal evidence that was disclosed that these goods were intended for re-export from the United Kingdom to South Africa. The case of the respondents is that the order was placed by the British firm in collusion and conspiracy with the petitioner to avoid a prohibition which has been imposed by Sec. 19 of the Sea Customs Act read with clause (b) of the Government of India, Ministry of Finance Notification No. 2C(6)/46(1), dated 17th July, 1946 whereby export of mica to South Africa has been prohibited. It is further alleged that the petitioner company had been dealing with South Africa in the past and its effort to carry out the transaction through the British firm was a mere ruse to get over the prohibition aforesaid. It is finally said that it was clear from the documents that the real purchaser was M/s. Electrical Construction (Pty) Ltd. Durban, Natal in South Africa. On or about the 11th March, 1954 a case was started against the petitioner company by Shri B. B. Gujral who was then the Assistant Collector of Customs for Exports. At the time when the investigation started, Shri Venkatesan was the Assistant Collector of Customs and Superintendent, Preventive Servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in paragraph 2(j) of the affidavit of H. R. Syiem affirmed on the 25th March, 1958. This sets out the argument of Shri Sawhney in answer to the point made out by the lawyer on behalf of the petitioner company. According to Shri Sawhney, the point made out by the lawyer was of no substance because the question as to whether the Chief Customs Officer should have been satisfied before or after the attempt was made to violate the legal prohibition for export, did not arise. As long as he was satisfied, the point of time when that satisfaction arose was immaterial. This opinion was given after the hearing was over and is to be found only in the records of the authorities, which had not been disclosed to the petitioner or to his lawyer and they had no opportunity of dealing with the same. This note was not given in the first instance, to Shri Banerjee. It was sent to Shri Srivastava who made the following notes: 2. "I agree with A. C. X. Dagas are being examined." This obviously means that Sri Srivastava the S.P.S. was agreeing with the view expressed by Shri Sawhney and he refers to the fact that the Dagas, namely, the forwarding agents, were being examined. 3. It then appears th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her affidavit stating certain facts. Thereupon a further affidavit has been filed by Shri H. R. Syiem to which I have already referred to. I must say that now there has been a full and frank disclosure of all the facts. It is from this affidavit that I have taken most of the facts which I have set out above. At the first hearing Mr. Meyer attempted to go into the merits of the case but in his final argument he has stated that regard being had to the facts disclosed, it is not necessary to deal with the merits but he has taken the following points. He firstly states that the order communicated to the petitioner Company dated the 15th July, 1954 signed by Shri Sattanathan is not the order of Shri Banerjee put in a formal shape, but that it is an inde pendent order. He says that this order of Shri Sattanathan is bad on two grounds. The first ground is that the hearing took place before Shri Banerjee and therefore Shri Sattanathan was not competent to deal with the evidence and pass any order. Secondly, he says that if the order of Shri Sattanathan be taken to be a formal order, then it appears that there is an admission that the order was drawn up by the office and therefore Shri Satt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of adjudication. If that is so, I do not see how it can be said that the order of adjudication is really an order passed by Shri Banerjee dated the 6th of July, 1954. Therefore, the position seems to be as follows: If the operative order is that of Shri Sattanathan dated the 15th of July, 1954 it must be at once declared to be bad because he is not the officer who heard the parties. Although this matter had been at one time the subject of controversy, it has now been held by several decisions of the Supreme Court that the Customs Authorities when making adjudications resulting in confiscations or fines, act as quasi-judicial bodies. In fact, this has not been disputed before me. If this body is a quasi-judicial body, then it follows that a certain procedure must be followed and although there are no rules and regulation governing the procedure, still the rules of natural justice must be observed. One of the well-known rules of natural justice is that a person should be heard and the evidence should not be taken behind his back. It also follows, I think, as a corollary that if there is a hearing, not only evidence should not be heard ex parte but even arguments should not be hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicating officer and there is nothing in the order dated the 6th of July, 1954 to show that the adjudicating officer made any reference to such notes. I am unable to accept either of these contentions. I cannot see how the note of Shri Sawhney can be called minutes of proceedings and it is obvious that Shri Banerjee was considering not only the opinion of Shri Sawhney but the opinion of Shri Srivastava who had nothing to do with the hearing of the case. With regard to the point taken that Shri Sattanathan had merely subscribed his signature to the order which had been drawn up in the office, I need say no more because as I have stated above, I am unable to accept the argument that the order of Shri Sattanathan is not an independent order but is an order merely "drawing up" the order of Shri Banerjee. As regards the evidence of Daga, it is however not at all clear whether it was in connection with the petitioner company or in contemplation of a proceeding against the clearing agents themselves. The result is that for the reasons that I have mentioned above, both these orders must be declared to have been made, not in accordance with law, and cannot be supported. It is not necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X
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