Decided on March 14,1970



- (1.) THIS appeal is against the judgment of T. K. Basu, J. , dated 3-2-69, by which he quashed the order of penalty passed on 17-8-62 by the additional Collector of Customs (pp. 111-120 of the Paper Book) and the orders dated 13 15-12-63 and 21-9-64, passed by the Central Board of India and the Government of India, rejecting the appeal and revision preferred by the Petitioner Company under Article 226 of the Constitution,-the respondent before us. The Additional collector and the Government have preferred the present appeal.
(2.) THE charge upon which the impugned order (p. 119 of the Paper book) was made by the Appellant as that 1,000 bales of B. Twills which the respondent sought to export to Kenya per SS inspiring "have been mis-declared in the relevant Shipping Bills in respect of the F. O. B. value thereof", and the Appellant (Addl. Collector) held that by such mis-declaration, the Respondent had contravened section 167 (8)of the Sea Customs Act, read with sec. 23a of the Foreign Exchange regulation Act as well as Sec. 167 (37) of the sea Customs Act. He, therefore, confiscated the goods in respect of which shipping Bills had been presented at the Customs House, but gave an option to the Respondent to redeem the goods on payment of a fine of Rs. 2 lakhs, and also imposed a personal penalty of Rs. 35,000/ -. After paying the sum of Rs. 235,000/- as aforesaid, under protest, the Respondent got the goods released and thereupon challenged the impugned order by statutory appeal and revision, as stated at the outset. The government of India having dismissed the application for revision on 21-9-64 the respondent brought his application under Article 226 of the Constitution on 14-5-65 (pp. 4-16 of the Paper-book), to quash the impugned orders, asking for a refund of the sum of Rs. 2,35,000 which the Respondent had paid under protest, as fine in lieu of confiscation and personal penalty. From a reading of the impugned order at pp. 119-20, it is evident that the Addl. Collector relied upon both Sections 167 (8) and (37) in imposing the order of confiscation and penalty.
(3.) THE judgment of the Court below was a short one. In the main, the Court relied upon the majority judgment of the Supreme Court in the case of (1) Union of India v. Shreeram, which is set out at pp. 208 et seq. of the paper-book (since reported as (1969) 1 s. C. C. 91), in holding that the only obligation of an exporter under the provision in Section 12 (1) of the Foreign exchange Regulation Act, 1947 was to furnish "a declaration. . . . that the amount representing the full export value of the goods has been, or will within the prescribed period, be, paid in the prescribed manner" and that no offence under Section 167 (8) of the sea Customs Act, 1878, read with section 12 (1) of the Foreign Exchange regulation Act, was committed where a declaration as aforesaid had been furnished by an exporter, however false the contents of the declaration might have been. The Customs authorities might have other remedies for such mis-declaration but not one under section 167 (8) of the Sea Customs Act, to confiscate the goods sought to be exported and to impose penalty upon the exporter. Upon this view, he held that the impugned order was vitiated by an error apparent on its face. He, therefore, quashed the impugned order and also issued a writ of mandamus directing the Appellants "to refund to the Petitioner the sum of Rs. 235,000 realised by way of fine in lieu of confiscation and personal penalty". At the same time he gave liberty to the Appellants to proceed according to law.;

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