D.N. Sinha, J. - (1.) The facts in this case are shortly as follows: The petitioner is a firm of established importers of Iron and Steel materials. On or about 31st December, 1957 the petitioner got a license from the Government of India being License No, STC/BK/TDS/98 for the importation at the Port of Calcutta and Bombay of 9299.379 tons of Mild Steel plates, from the areas mentioned therein, of the value c.i.f. of Rs. 94,69,500/-. It has been pointed out in the license itself, the original of which has been produced in court, that it was issued subject to the policy outlined in the Import Trade Control Book, published by the Ministry of Commerce and Industry, New Delhi, and that the limiting factor in the license was the weight and c.i.f. value. It has also been stated therein that the importers, who mention incorrect prices in the application for a custom permit will be penalised. On or about 15th January, 1958 the petitioner imported through Messrs. 'Gosho Co. Ltd., of Tokyo, Japan, ex. s.s. "Eastern Maid", 76 pieces of M.S. plates to BSS-15, size 1-1/8" x 4' x 8', weighing 49.817 long tons, into the Port of Calcutta. On arrival of the said vessel at the Port of Calcutta on or about the 2nd week of February, 1958, the petitioner on 13th February, 1958 submitted a Bill of Entry for home consumption, relating to the said consignment. In the Bill of Entry so submitted, the value of the goods was declared as 1762-15-6 c.i.f. The petitioner further obtained a custom clearance permit in respect thereof, being No. SIC/CP/TDS/1201/124, wherein, the value was shown as Rs. 23,586/- c.i.f. This Bill of Entry together with the clearance permit was accepted by the Customs authorities and registered as I. F. R. No. 423 of 14-2-1958. Thereafter, the goods were assessed and it is admitted that under item 63(19) of the Tariff Schedule, the goods were found to be duty free. They were cleared from the custom barrier, between 18th and 22nd February, 1958. Thereafter, the custom authorities received certain informations and seized a number of documents and files from the office of the petitioner firm. It appears from the documents so seized, that the petitioner had imported these 76 pieces of M. S. Plates ex. ss. "Eastern Maid" of the value of 2504-13-4, but had declared the same to be of the value of 1762-15-0. The customs clearance permit that was obtained, was of the value of Rs. 23,586/- whereas the goods cleared were in excess of that amount by Rs. 10,286.56 np. It appeared from a photostatic copy of the relative invoice, which was among the seized documents, that the invoice price was 2224-3-1, f.o.b. and the freight was 312-12-0. The customs authorities asked for particulars from the petitioner's clearing agents, the Pioneer Consolidated Co. of India Ltd. From their reply and the other documents seized, it appears that the original Bill of Entry as made out by the clearing agents correctly showed the value as 2540-13-0. It was subsequently scored out and the figure of 1762-15-6 was substituted therefor. According to the clearing agents, what happened was that on 5th February, 1958 the petitioner requested them to give inspection of the documents which they had received from the Punjab National Bank Ltd. and the documents were handed over to the petitioner's representatives. Later, the custom agents received a request from the petitioner for a set of blank Bill of Entry forms, which were supplied. The relevant documents taken for inspection were returned on the 12th February, 1958 and, according to the clearing agents, the substitution was made without their knowledge, and they apologised to the customs authorities for not having checked the documents more closely before submitting the same. On the 9th January, 1959 the Assistant Collector of Customs for appraisement issued a notice upon the petitioner, referring to the above facts, and asking them to show cause why penalty should not be imposed upon the petitioner, being a "person concerned" in the offence of unauthorised importation under Section 167(8) of the Sea Customs Act. It was stated that the petitioner might produce all corroborative evidence in support of their explanation, and if required, may be heard in person. A copy of this show-cause notice is at page 1 of the brief of correspondence. According to the said notice, the customs clearance permit was for Rs. 23,586/- and goods worth Rs. 10,286.56 nP. were imported without any valid import license, in contravention of the Government o India's Order No. 17/55 dated 7th December 1955 read with section 3 o the Import and Export (Control) Act, 1947 and Section 19 of the Sea Customs Act. Thereupon, instead of showing cause, the petitioner made this application and this rule was issued on 12th November, 1959 by Sen, J., who also issued an Order of interim injunction. The matter has now come up before me for hearing.
(2.) Mr. Deb appearing on behalf of the petitioner, has taken two points. The first point taken is that the goods concerned in this case, having left the custom barrier, after obtaining an order of removal under Section 89 of the Sea Customs Act, there is no further jurisdiction left in the customs authorities to issue the show-cause notice, or to levy any penalty, or indeed, to take any further steps in the matter under the Sea Customs Act. The second point taken is that even assuming that the facts stated in the show cause notice are true, the matter does not come within the purview of Section 167(8) of the Sea Customs Act, and that the show-cause notice and the proceedings initiated thereby, are without jurisdiction.
(3.) I shall now deal with the first point, which is of some public importance. Mr. Deb argues that the whole scheme of the Sea Customs Act shows that all the proceedings contemplated thereunder must take place before the goods are cleared from the customs barrier. According to him, once an order is obtained under Section 89 and goods are cleaved, there is no further jurisdiction left in the customs authorities to proceed under Section 167(8) of the said Act. He says that perhaps the only thing that Could be done in such circumstances was the realisation of any short-levy under Section 39 of the said Act. According to learned counsel, the imposition of a penalty is no longer possible, once the goods have left the customs barrier. Section 89 of the Sea-Customs Act is set out below: "When the owner of any goods entered for home consumption and (if such goods be liable to duty) assessed under Section 87, has paid the import-duty (if any) assessed on such goods and any charges payable under this Act in respect of the same, the Customs-officer may make an order clearing the same; and such order shall be sufficient authority for the removal of such goods by the owner.";