B.C.Mitra, J. - (1.) This is an appeal against the judgment and order of Banerjee, J., dated September 2, 1963, discharging a rule under Article 226 of the Constitution, obtained by the appellant for the issue of appropriate writs and orders, to rescind, recall and/or withdraw the order dated March 17, 1962, made by the respondent No. 1, imposing on the appellant a personal penalty of Rs. 25,000/- and directing confiscation of certain machinery and also imposing a penalty of Rs. 20,000/- in lieu of such confiscation.
(2.) The appellant is a manufacturer of various trunk and suit case fittings. With a view to manufacture bifurcated rivets the appellant arranged for import of certain machinery from West Germany through Messrs. Stahlunion Co. Ltd., the Calcutta branch of a company carrying on business in London. This company is the agent of the manufacturers of the machinery in West Germany. For the purposes of importing the said machinery, the appellant applied for, and obtained a licence dated March 31, 1959, for such import. The particulars of the machinery to be imported, were set out in the licence, including its value which was specified as "C.I.F. value Rs. 45,000/-". The license was issued subject to certain conditions The conditions which are material for the purpose of the appeal are as follows "1. The above application is accepted and import licence is granted having quantity and value as the limiting factor and is not valid for clearance if the actual value of any item exceeds the C.I.F. value indicated in the licence by more than five per cent. 2. This licence is issued subject to the conditions that the goods will be utilised only for use in licence-holder's factory and that no portion thereof will be sold or permitted to be sold by any other party."
(3.) On arrival of the goods at the port of Calcutta, the appellant submitted a bill of entry, a copy of which is annexed to the petition and marked 'B'. In this bill of entry, the real value of the machinery was stated to be Rs. 44,978.42. The value stated therein for the purpose of assessment of customs duty was also the same. On payment by the appellant of the customs duty assessed on the machinery, the same was cleared on July 4, 1960.;