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TMI Blog1971 (12) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... ange Regulations Act, 1947 in form <?xml:namespace prefix = st2 /> G.R. I. in accordance with the rules framed under the Act. Ext. P-3 is the copy of such declaration. These were filed on 24-3-1971. Thereafter there was a search of the residential premises of the petitioner as a result of which certain letters and files were seized. It appears that the Assistant Collector of Customs, on going through these, took the view that there was an attempt at violation of Section 12(1) of the Foreign Exchange Regulation Act, 1947. With regard to this, I will refer to certain facts so that the stand taken by the Customs authorities may be understood better. Ext. P-8 is the earliest of the letters among those seized copies of which are produced in this case. That indicates that the petitioner was doing business with foreign countries through one Alberto Hesse of Trieste which is in Italy. He was being paid a commission for the orders secured by him and it would appear from that letter that he had canvassed and obtained the custom from the Italian Firm Messrs. Tobia Giacomini. The relevant part of the letter is the suggestion that payment by the buyers must be agreed to be in rupees. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not with a view to make any direct monetary gain for the petitioner but possibly to obtain the custom by offering more favourable terms in regard to consideration to be paid. The question is whether in these circumstances the act of the petitioner in filing the declaration under Section 12(1) of the Foreign Exchange Regulation Act, 1947 is in any way an infringement of the provision in Section 12(1) of the Foreign Exchange Regulation Act, 1947. 2.Section 23-A of the Foreign Exchange Regulation Act, 1947 runs as follows :- "Without prejudice to the provisions of Section 23 or to any other provision contained in this Act, the restrictions imposed by sub-sections (1) and (2) of Section 8, sub-section (1) of Section 12 and clause (a) of sub-section (1) of Section 13 shall be deemed to have been imposed under Section 11 of the Customs Act, 1962, and all the provisions of that Act shall have effect accordingly." The effect of Section 23-A is to incorporate the various provisions, referred to therein as provisions in Section 11 of the Customs Act, 1962 which enables the Central Government to notify prohibiting either absolutely or subject to such conditions as may be specified in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge Regulation Act, 1947. In this context I must necessarily refer to the reason which weighed with the Collector of Customs to find that there has been such a contravention. In paragraph 15 of Ext. P-6 order the Collector mentions that the exporters have misdeclared the material particulars. Ext. P-4 show cause notice indicates that the misdeclaration alleged is in regard to the name of the buyers. It is said in Ext. P-4 that the exporters in this case have knowingly misdeclared the buyers' name in the shipping bill and invoice. The reason why this was referred to is possibly because Section 50(2) of the Customs Act requires the exporter of any goods to make a declaration as to the truth of the contents of the shipping bill filed under Section 50(1) of that Act and it appears that misdeclaration under this section was considered to be a contravention of Section 12(1) of the Foreign Exchange Regulation Act, 1947. That apparently is the stand taken in the counter-affidavit also. But it is not urged now that misdeclaration of the buyers' name would in any way be contravention of Section 12(1). Though in Ext. P-4 notice Section 50(2) of the Customs Act, 1962 is also referred to, that c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by Rule 3 of the Foreign Exchange Regulation Rules, 1952 was furnished and was also supported by evidence prescribed in Rule 5. Even if the invoice price mentioned in the declaration did not represent the full export value of the goods exported, the declaration cannot be considered as invalid or non est. The contravention complained of on account of the fact that the price declaration did not represent the full export value of the goods exported was held to be really contravention of Section 12(2) and Rule 5 punishable under Section 23 of the Foreign Exchange Regulation Act and not punishable under the Customs Act, 1962 by reason of Section 23A of the Foreign Exchange Regulation Act, 1947. Evidently it was in view of this that the amendment to Section 12(1) was effected and this amendment besides insisting upon a declaration also provides that it should be true in all material particulars. Among others the material particulars were to include the amount representing the full export value of the goods or, if the export value of the goods is not ascertainable at the time of export, the value which the exporter, having regard to the prevailing market conditions, expected to receive ..... X X X X Extracts X X X X X X X X Extracts X X X X
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