I R MENON Vs. COLLECTOR OF CUSTOMS MADRAS

JUDGEMENT

(1.) THIS is a petition under Article 228 of the Constitution for Issue of an appropriate writ to quash the order dated 5-4-1961 of the Collector of Customs madras directing confiscation of the petitioner's Chevrolet, 1959 model motor car bearing registration No. S. S. 7955 and imposing on him a penalty of Rs. 11000/under section 167 (8) of the Sea Customs Act, 1878. The petitioner is said to be the Chief Executive of the Indian division in film business of Shaw Brothers Ltd. , singapore. With a British passport the petitioner, apparently for business purpose, arrived in this country from Singapore, and left on wore than one occasion du-ring the period from September 1959 to October 1960. For his use during his visits to madras he imported his car on 24-9-1959 by s. s. Rajula under cover of Carnet de passages en douane dated and issued by the Automobile Association of Singapore. The Import was under the provisions of the Customs Convention on the temporary importation of private road vehicles. This is an International Convention adopted by the United Nations Conference on Road and Motor Transport held at Geneva in 1949, and the object of the convention is to facilitate development of international touring. The Indian Republic is one of the signatories to this Convention. Under its provisions importation of motor vehicles is permitted, subject to certain terms and conditions, without payment of import duties and import taxes and free of import prohibitions and restrictions. One of such conditions is that import permit shall he valid for a period not exceeding a year from the date of issue, and that on the, expiry of the period, the, vehicle should he exported from the country of import. The petitioner, therefore, exported his car from Madras to Singapore on 19-81960. But he again, under cover of similar temporary importation papers, imported the same car in Madras by s. s. "state of Madras" on 21-9-1960. The petitioner himself cleared the car from the customs he having arrived at Madras on 13-8-1960. On 4-10-1960, he left for Singapore by Air leaving the car in the custody of one N. Ramachar who is said to be the Chief Representative in India of shaw Brothers Ltd. On 2-12-1960 the car was produced by Ramachar accompanied by a representative of Messrs. Thomas Cook and Son, Madras before the customs authorities for export to Singapore under a shipping bill dated 28-11-1960. Finding that the car had been imported Into this country by the petitioner under the triptyque system, the customs authorities, on suspicion, instituted an investigation as a result of which they found that the petitioned was in India only for about three months during the period from 24-9-1959 to 19-8-1960 and for about 22 days between the period from 13-9-1960 to 4-10-1960 and that during his absence, the car was in the custody of Ramachar during bath the periods. Following in enquiry, the Collector of Customs found that the car had been used by ramachar and certain others who were by no means persons normally resident outside India and that the petitioner has thereby violated the Triptyque regulations and forfeited his right to the Triptyque concession. At the enquiry it further emerged that during the relevant periods, the car had covered a running distance of 9000 and 800 miles respectively and that its two shock absorbers were also removed without the knowledge And express permission of the customs from the car on the ground that they were damaged. The actual operative part of the order issued by the Collector of Customs does not, however, refer to the shock absorbers.

(2.) THE order of the Collector of Customs is impugned by the petitioner on two grounds: (1) that the use of the car by Ramachar and certain others who are normally residents of this country is not a violation of the terms of the Convention and (2) that even if it is, it does not attract the penalty provided by section 167 (8)of the Sea Customs Act. I have no doubt that the first ground is devoid of any substance. The terms of the Customs Convention relevant to this are contained in articles 2 (1) and 11 (1 ).

(3.) THE second contention, however, appears to be substantial and I am inclined to accept it. The point of it is whether by the misuser of the car as aforesaid, the petitioner Alas not forfeited his privilege in relation to it under the carnet. By the laws of this country conceived to build up its own economy, customs and tariff barriers have been raised against import of goods subject to varying terms and conditions. This is a phenomenon familiar to most of the free countries of the world. Exemption of the car from liability to customs duties is contained in notification No. 224 dated 3-8-1958, which has been issued by the Ministry of finance in exercise of the general power provided thereof under See. 23 of the sea Customs Act. The exemption is subject to certain 'limitations and conditions stipulated in the notification, one of them being that it is subject to the provisions of the Customs Convention. Prohibition,,; against import of certain specified goods, which include motor cars, is to be found in clause 3 of, the Imports (Control) Order, 1955 made pursuant to sections 8 and 4 of the Imports and exports (Control) Act, 1947. But the bar, of import of the car in question is saved by Sub-clause (n) of clause, 11 of the Order which reads:,'