P V MOHAMMAD BARMAY SONS Vs. DIRECTOR OF ENFORCEMENT

JUDGEMENT

(1.) A short but interesting question of law had arisen in this case. The appellant is a firm which owned three vessels, by name M.V. Fathel Beri, M.V. Fathel Rehman and M.V. Saad Salam. It carries on export of timber, coir etc. to Gulf countries and imported Euphraez Zabdi Dates on return. Out of the amounts payable in Pounds deducting the price for dates, the appellant had fitted 230 H.P. Gardner engine (second hand) to their vessel Fathelbari and 240 H. P. Kalvin engine (second hand) to their vessel Fathel Rehman, which were purchased at the cost of Rs. 50,000/-and Rs. 55,000/- respectively. Out of the 'amount payable through Nakoda in Basrah, a sum Of Rs. 30,000/- was paid. For the third vessel Saad Salam an agreement was entered into to fit in a second hand engine with M/s. Mohd. Zasim of Kuwait at a price of 2,100 Kuwati Dinars and payable in three annual instalments. The Addl. Director, Enforcement Directorate, Madras adjudicated the proceedings against the appellant and found that the appellant had purchased two engines and got fitted to two motor vessels and agreement to the third engine was also concluded without obtaining the permission of the Reserve Bank of India. Thereby it contravened Ss. 5(1)(a) and 5(1)(b) of the Foreign Exchange Regulation Act of 1947, for short 'Repealed Act'. In this behalf admittedly this contravention was discovered on a raid conducted on the premises of the appellant on October 4, 1974. In consequence of discovery a notice was issued on October 11, 1974 and not having been satisfied with the explanations, a show cause notice was issued on October 18, 1975 an explanation was given by the appellant and found to have committed the contravention of Sec. 5(1)(a) and (b) and penalty was imposed on July 5, 1977. On appeal, while by order dated October 17, 1978, the Appellate Board confirmed the penalties, reduced the penalty from Rupees 50,000/- to Rs. 37,500/-. Questioning the legality thereof the appellant filed this appeal by special leave under Art. 136 of the Constitution of India.

(2.) The two fold main contentions have been raised by the appellant. The first contention is that the Act 7 of 1947 was repealed by Foreign Exchange Regulation Act, 46 of 1973 for short 'the Act'. No action was taken under the repealed Act before the Act came into force on September 19, 1973. The impugned action, therefore, is without jurisdiction and authority of law. It is also contended that the proceedings against the appellant was taken under the Sea Customs Act 1922 and the adjudicating authority imposed a penalty of Rs. 4,30,000/-. On Appeal, the Central Board of Excise and Customs by order dated August 19, 1975 set aside the penalty. For the same offence no proceedings under the Act could be taken. It is also contended that the finding is based on no evidence, since the respondents did not prove the offence under the Repealed Act or under the Act.

(3.) Section 5(1)(a) and (b) of the Repealed Act reads thus :