- (1.) At the hearing of this appeal from the judgment and order passed by P. K. Banerjee, J. on the 23rd of March, 1973, discharging the rule and dismissing the petition filed by the appellant under Art. 226 of the Constitution before a Division Bench of this court consisting of Sabyasachi Mukharji, and Murari Mohan Dutt, JJ., the Division Bench noted that from the contentions made on behalf of the parties before them the following points arose for consideration: - (1) Whether, by virtue of S. 23A of the Foreign Exchange Regulation Act, 1947, the provisions of Ss. 113 and 114 of the Customs Act, 1962 are attracted for contravention of S. 12(1) of the Foreign Exchange Regulation Act, 1947, in relation to goods which had been exported beyond India. (2) Whether, when goods have been exported beyond India such goods may be said to be ?export goods? as defined in S. 2(19) of the Customs Act, 1962 and liable to confiscation under S. 113 for the purpose of imposition of penalty under S. 114 of the said Act.
(2.) The Division Bench noticed that the above points had come up for consideration before other Division Benches of this Court but the decisions of the Division Benches were conflicting. As, according to the Division Bench there was a conflict of decisions of the Division Benches of this Court, the Division Bench referred the appeal for final decision to a Full Bench under Rule 2 read with Rule 7, Part II, Chapter VII of the Appellate Side Rules.
(3.) In referring this appeal for final decision to a Full Bench, the Division Bench in its judgment delivered by M. M. Dutt, J., Sabyasachi Mukherji J. agreeing with him, had recorded after setting out the above points which arose for their consideration: - ?the above points came up for consideration before the Division Bench of this Court but the decisions of the Division Bench are conflicting. In Jute Investment Company Ltd. v. S. K. Srivastava & Ors. 77 CWN 501, a Division Bench of this Court has held that goods which have already been exported pursuant to an order made under S. 51 of the Customs Act, 1962 cannot be deemed to be export goods as defined in S. 2(19) of the Customs Act, 1962. The same view has been expressed in a subsequent Bench decision of this Court in Thomas Duff and Co. (India) Pvt. Ltd. v. Collector of Customs & Ors. in Appeal No.258 of 1971, disposed of on October 3, 1975. (1976 CHN 242 : 80 CWN 305). On the other hand it has been held by another Division Bench presided over by S.P. Mitra, C.J. in Assistant Collector of Customs & Ors. v. United India Minerals, 79 CWN 900, that an attempt to export goods contrary to the prohibition imposed by the Customs Act 1962 or any other law for the time being in force is punishable under S. 114 of the said Act irrespective of the fact that exportation has already taken place. Further it has been held that a clearance under S. 51 of the said Act does not prevent the authorities from taking other steps open to them under the statute.?;