D.K. Seth, J. - (1.) The petitioner, Rajan Ghoshal, carries on business under the name and style of Shyam Sundar Enterprises, a sole proprietorship concern. He had exported certain goods in five containers from Kolkata Port through M.V. Kota Bintang. These containers were off-loaded from the vessel M.V. Kota Bintang at Vizag Port by the Customs Authorities. A notice dated 11th January, 2002 was addressed to the shipping agent M/s. S.K. Kanjilal, through whom the petitioner had shipped the consignment. This Annexure "P-4 is the subject matter of challenge in this petition. In the said letter, the shipping agent was informed that those five containers were off-loaded at Vizag Port for 100% examination. Therefore, the shipping agent was asked to depute a representative in whose presence the examination would be carried out on 12th January, 2002. This notice was issued by Deputy Commissioner of Customs, Special Investigation Branch, Kolkata.
(2.) Mr. Mullick, learned Counsel for the petitioner, has challenged the action of the Customs Authorities on various grounds. According to him, the Customs Authority purported to Act on the basis of suspicion as is reflected from the notices issued by the Appraiser, Special Investigation Branch, Dock Intelligence Unit (Appraising) contained in Annexure "P-5" series. Relying on those notices, he contends that the said notice was issued on the basis of suspected over-invoicing. Thus, the basis of off-loading the said goods and initiating the investigation purporting to 100% examination, was founded purely on suspicion. According to him, such investigation can be carried out under Section 110 of the Customs Act, 1962, if the proper officer has reason to believe that the goods are liable to confiscation. He points out that suspicion is not a reason to believe. He relied on the decision in State (Collector of Central Excise) v. Tapan Kumar Shome, 1986 (23) ELT 42 (Orissa) (para 16); Smt. Pushpa Devi v. Union of India, 1984 (15) ELT 72 (Raj.) (Head Note) and Income Tax Officer v. Lakhmani Mewal Das, 103 ITR 437 (SC) at page 448. Relying on these decisions, he had elaborated that in the present case there is nothing to show that the Proper Officer had any reason to believe. The reason to believe being the foundation of the whole action initiated, in its absence, the entire process fails. As such the entire process should be quashed and the goods should be exported. Therefore, the Customs Authority cannot proceed to confiscate or seize the goods. (1) Sections 50 and 51 of the Customs Act, 1962 hereinafter referred to as Customs Act, deals with clearance of goods for exportation. It is only at the stage of exportation, as contemplated in Sections 50 and 51, the exporter can be held liable. Once the goods are cleared and the exportation takes place, no liability can be fixed on the exporters. The Customs Authority cannot assume jurisdiction to seize any goods once it is cleared to exportation and the goods are shipped and left the port. Section 130 provides for confiscation of goods attempted to be improperly exported. The Section prescribes that only when attempt is made to export the goods, it may be confiscated, but once the goods are exported by reason of the clearance given by the Customs Authority under Section 51, it cannot be said to have been improperly exported. That apart, when it is exported, it is no more an attempt to export improperly. Therefore, goods, which has since been exported after clearance given under Section 51 cannot be confiscated under Section 113. Inasmuch as the conditions as enumerated in different clauses of Section 113 does not apply in the case of the petitioner. The goods that had been attempted to be seized, does not come within the purview of any of the said clauses. He pointed out that at best it can be attempted to be brought within any of the Clauses (h) or (i), (ii) and (k). Except these four clauses, the present case cannot be fit in, in any of the other clauses. (2) He explained that the goods, which were exported, are not dutiable as defined in Section 2 (4) read with Section 12, Customs Act, and as such it cannot come under Clause (h). Inasmuch as it is alleged that the goods that were exported were found in excess of the goods declared. But, the goods not being dutiable goods, Clause (h) cannot be attracted. Similarly Clause (i) also cannot be attracted, which relates to dutiable or prohibited goods, though it is alleged that the declarations given do not correspond to the material particulars with the entry made in the declaration. The question of drawback also does not come at this stage as contemplated in Clause (ii). Clause (k) also cannot be applied since this covers cases where the goods after clearance are not loaded for exportation. Inasmuch as, in this case, after clearance, the goods have been loaded. Therefore, the goods cannot be confiscated. If the goods cannot be confiscated, it neither can be seized nor can be subjected to 100% examination. (3) On similar ground Section 114, Customs Act, has also no manner of application in the present case. Section 114 applies in a case for attempt to export goods improperly. On the same analogy that the goods have since been exported, 114 is inapplicable. (4) The other provision for confiscation emanates from Section 106, Customs Act, which provides the power to stop and search conveyance. In the present case, this provision is alleged to have been applied. This provision can be exercised only when there are reasons to believe. On the same ground that this case was initiated on the basis of suspicion, Mr. Mullick contends that the stoppage and search is wholly without jurisdiction. Then again this provision can be applied only in respect of a goods where the goods are being smuggled. In the present case, the goods having been cleared for exportation, there is no question of smuggling of those goods. (5) Even if under Section 106, Customs Act, the goods could be searched, still then the power to search is confined to Clauses (a), (b) and (c) of Sub-section (1) of Section 106. None of these provisions empowers 100% examination. Clause (a) provides for rummage and search of any part of aircraft, vehicle or vessel. Clause (b) provides for examination and search of goods in the aircraft, vehicle or vessel. Clause (c) empowers breaking up of lock or any door or package if the keys are withheld. Thus, Section 106 does not empower the Customs Authority to carry on 100% examination. (6) The notices under Section 108, Customs Act, are wholly without jurisdiction in view of the fact that the Customs Authorities could not proceed to confiscate or seize or search under Sections 113, 110 and 106 respectively. Therefore, the entire proceeding being is incompetent, the notices issued under Section 108 are without jurisdiction. (7) The attempt to confiscate is incompetent since no notice under Section 124, Customs Act, has since been issued to the petitioner. This provision requires not only giving of reasons but also indicating of the grounds on which the confiscation is attempted to. Neither any notice nor any information with regard to the grounds for purported attempt to confiscate has since been communicated to the petitioner. (8) Properly declared goods cleared by the authority after random search, cannot be subjected to search and seizure, nor can the same be confiscated. Relying on Section 2 (19), which defines 'export goods' to mean goods, which are to be taken out of India to a place outside India, he contends that the goods are not export goods, since it has already left the Kolkata Port. That apart, according to him, Clauses (i) and (ii) of Section 114 does not affect the present case, since the goods are neither prohibited nor dutiable. (9) The petitioner has not yet claimed drawback as contemplated in Section 75, Customs Act. Even then Section 75 prescribes that in case draw back is allowed though not allowable, then the same may be recovered. The Customs Authority did not have any jurisdiction to confiscate any goods or seize it, in case drawback is not allowable. (10) The Customs Act being a fiscal statute, it has to be interpreted strictly. Unless the law prescribes the Customs Authority cannot be permitted to proceed with the proceedings. He relied on Commissioner of Sales Tax U.P. v. Modi Sugar Mills Limited,. He had also relied on Lucas TVS, Madras v. Assistant Collector of Customs, Madras, 1987 (13) ECC 292 (Mad); 1987 (28) ELT 266 (Mad). On these grounds he prayed that the writ petition be allowed and the purported seizure, the purported investigation and the process for confiscation, if any, should be quashed and the goods should be exported again. Submission on behalf of the shipping agent:
(3.) The learned Counsel appearing on behalf of the shipping agent of the petitioner, S.K. Kanjilal, who is added as party, supported the contention of Mr. Mullick. He pointed out that once the goods are exported and leaves the port, the title to the goods passes on to the person to whom the goods are exported or in other words the importer of the exported goods. Therefore, the exporter cannot be held liable in respect of those goods. Submission on behalf of the Customs Authority:;