K.T. Desai, J.
1. This revision application raises an interesting question as regards the construction of Section 193 of the Sea Customs Act, 1878.
2. The facts giving rise to this application are briefly these. Shri Digvijaysinhji Spinning and Weaving Mills Ltd., hereinafter referred to as 'the Company', imported about 275 cases of second-hand looms under one consignment and 175 cases of second-hand textile waste plant machinery under another consignment. The cases were imported at Bedi Port. The Company held licences for import of goods of a lesser value than the value of these consignments. The Customs Collector at Baroda allowed each of the aforesaid consignments to be cleared on the execution of a bond. Thereafter he held that goods in excess of those permitted to be imported had in fact been imported by the Company and that the Company had in the case of each of these consignments contravened the provisions of the Sea Customs Act of 1878. He held that offences under Section 167 (8) and Section 167 (37) (c) of the Act had been committed by the Company in respect of each of these consignments. He ordered in each case the confiscation of the goods under Section 167 (8). Under the provisions of Section 183 he was under an obligation to give to the Company an option of payment of fine in lieu of confiscation. He therefore gave an option to the Company, in lieu of confiscation, of payment of a fine of Rs. 22,918/- in one case and of Rs. 16,000/-in the other. He also imposed a penalty of Rs. 500/- on the Company in respect of the offence under Section 167 (37) (c) of the Sea Customs Act in each of the aforesaid cases. The Company appealed therefrom to the Central Board of Revenue being the Chief Customs authority under the Act. in the month of January 1954, the Central Board of Revenue set aside the order of confiscation and the imposition of a fine in lieu of confiscation in both the cases. The Central Board of Revenue instead ordered the Company to pay a penalty of Rs. 22,918/- in one case and Rs. 16,000/- in the other in respect of the offence under Section 167 (8) of the Sea Customs Act. The penalty of Rs. 500/- in respect of the offence under Section 167 (37) (c) was confirmed in each of the aforesaid cases. The matter was taken in revision before the Central Government and the Central Government remitted the penalty of Rs. 500/- levied in both the cases. in order to recover the sums of Rs. 22,918/- and, Rs. 16,000/- ordered to be paid by way of penalty by the Central Board of Revenue, the Collector of Customs purporting to act under Section 193 of the Sea Customs Act, 1878, notified in writing to the First Class Magistrate at Jamnagar that the aforesaid amounts of penalty had remained unrecovered from the Company. In order to enforce payment of the aforesaid two sums, the First Class Magistrate at Jamnagar issued warrants of attachment attaching the goods of the company for the realisation of the aforesaid amounts of penalty. Thereupon, the Company applied to the said Magistrate to cancel the warrants of attachment contending that the orders passed by the Central Board of Revenue were without jurisdiction and null and void and further contending that as the Customs Collector himself had not levied the penalty it was not open to him to take any action under the provisions of Section 193 of the Sea Customs Act. The learned Magistrate negatived the contentions of the Company. The Company went in appeal from that order to the learned Sessions Judge, but as no appeal lay from that order, that application was permitted to be treated as an application in revision. The learned Sessions Judge upheld the order passed by the Magistrate. The Company has come in revision against that order.
3. The contention of the Company is that the penalty in this case has been adjudged, not by the Collector of Customs, but by the Central Board of Revenue and that under the provisions of Section 193 it is not open to the Customs Collector to notify to the Magistrate the amounts of penalty adjudged by the Central Board of Revenue for the purpose of recovery. It is urged that Section 193 comes into operation only when the amount of penalty has been adjudged by the Customs Collector himself. Section 193 is in the following terms :
'When a penalty or increased rate of duty is adjudged against any person under this Act by any officer of Customs, such officer, if such penalty or increased rate be not paid, may levy the same by sale of any goods of the said person which may be in his charge or in the charge of any other officer of Customs.
When an officer of Customs who had adjudged a penalty or increased rate of duty against any person under this Act is unable to realise the unpaid amount thereof from such goods, such officer may notify in writing to any Magistrate within the local limits of whose jurisdiction such person or any goods belonging to him may be, the name and residence of the said person and the amount of penalty or increased rate of duty unrecovered; and such Magistrate shall thereupon proceed to enforce payment of the said amount in the manner as if such penalty or increased rate has been a fine Inflicted by himself.'
4. it is not disputed that the Central Board of Revenue is nob an Officer of Customs within the meaning of this section. What is urged by Mr. Rege, the learned counsel for the opponent, is that the penalty should be deemed in each of these cases to have been adjudged by the Customs Collector even though the order has been passed by the Central Board of Revenue as the Chief Customs Authority. He says that in order to interpret correctly the provisions of Section 193, we must consider the scheme of the Act and in the light of the intention of the Legislature as evidenced by the other provisions of the Act, construe Section 193. So far as the scheme of the Act is concerned, Section 167 of the Sea Customs Act, Bets out various offences and the punishment therefor. The punishments provided by Section 167 include punishments by way of confiscation of goods, penalty and increased rates of duty. These three types of punishment could be adjudged by the officers mentioned in Section 182. The provisions of Section 182 material for the purpose of this case are as under :
'In every case, .....in which, under this Act, anything is liable to confiscation or to increased rates of duty, or any person is liable to a penalty, such confiscation, increased rate of duty or penalty may be adjudged (a) without limit by a ..... Customs Collector.'
Section 183 provides that whenever confiscation was authorised by the Act, the officer adjudging it was under an obligation to give the owner of the goods an option to pay in lieu of confiscation. such fine as the officer thought fit. Section 188 provides for appeal. That section runs as follows:
'Any person deeming himself aggrieved by any decision or order passed by an Officer or Customs under this Act may, within three months from the date of such decision or order, appeal therefrom to the Chief Customs Authority, or. In such cases as the Central Government directs, to any officer of Customs not inferior in rank to a Customs Collector and empowered in that behalf by name or in virtue of his office by the Central Government.
Such authority or officer may thereupon make such further inquiry and pass such order as he thinks fit confirming, altering or annulling. the decision or order appealed against:
Provided that no such order in appeal shall have the effect of subjecting any person to any greater confiscation, penalty or rate of duty than has been adjudged against him in the original decision or order. Every order passed in appeal under this section shall, subject to the power of revision conferred by Section 191, be final.'
Under the provisions of that section a power is given to the appellate authority to make an order confirming, altering or annulling the decision or order appealed against. There Is, however, a limitation upon this power imposed by the Proviso which says that no order in appeal should have the effect of subjecting any person to any greater confiscation, penalty or rate of duty than had been adjudged against him in the original decision or order. The effect of Section 188 is that it is not open to the appellate authority to impose a penalty when no such penalty had been imposed by the order from which the appeal has been preferred.
5. Then come the provisions of Section 190. Under that section it is provided that if upon the consideration of the circumstances under which any penalty, increased rate of duty or confiscation has been adjudged by an Officer of Customs, the Chief Customs Authority is of opinion that such penalty, increased rate or confiscation ought to be remitted in whole or in part, or commuted, such authority may remit the same or any portion thereof, or may, with the consent of the owner of any goods ordered to be confiscated, commute the order of confiscation to a penalty not exceeding the value of such goods. In a case where an order of confiscation has been passed, if the appellate authority desires to commute that order and substitute in its place an order for levy of a penalty, then such an order can only be passed with the consent of the owner of the goods. The scheme of the Act envisages that the order passed by the Officer of Customs is not liable to be interfered with to his detriment by the appellate authority.
6. There are various provisions in the Act for the enforcement of the order passed by the Customs Officer. In respect of confiscation, Section 184 provides that the officer adjudging confiscation shall take and hold possession of the thing confiscated, and every Officer of Police, on the requisition of such officer, shall assist him in taking and holding such possession. This section shows that it is the officer who adjudges the confiscation who takes and holds possession of the thing confiscated and it is this officer on whose requisition every Officer of Police is bound to assist him in taking and holding such possession.
7. Then come the provisions of Section 189. That section provides that where the decision or order appealed against relates to any duty or penalty leviable in respect of any goods, the owner of such goods, if desirous of appealing against such decision or order, shall, pending the appeal, deposit in the hands of the Customs Collector at the port where the dispute arises the amount demanded by the officer passing such decision or order. The effect of these provisions is that before a person can appeal against a decision of a Customs Officer he has to deposit in the hands of the Customs Collector the amount of duty or penalty adjudged against him. These provisions are intended to obviate the necessity of any proceedings by way of attachment and sale for the realisation of any amount ordered to be paid by the appellate authority.
8. Section 192 provides that when any fine, penalty or increased rate of duty is leviable under the Act, the goods in respect of which such fine, penalty or rate is leviable, shall not be removed by the owner until such fine, penalty or rate is paid. It further provides that the Customs Collector may detain any other goods belonging to the person who is liable to pay such fine, penalty or rate passing through the custom-house until such fine, penalty or rate is paid. Then come the provisions of Section 193, which have already been set out earlier.
9. On a consideration of these provisions, the scheme of the Act appears to be that it is the officer of Customs who has to adjudge the amount of penalty or increased rate of duty. It is he, who is given the power to realise the amount thereof by sale of any goods that may be in his charge or in the charge of any other officers of Customs. It is he who has to notify to the Magistrate the amount which he is unable to realise by means of sale of goods in his charge or in the charge of any other officer of Customs. Before the appellate authority interferes in appeal, the amount of penalty or the increased rate of duty adjudged by the Customs Officer is either realised or is deposited under the provisions of the Act referred to above.
10. We have here to consider a case where penalty has been levied for the first time by the appellate authority under the provisions of Section 190. On a Plain reading of Section 193, it appears to us that it is only where a penalty is adjudged against a person by any officer of Customs and when such officer is unable to realise the unpaid amount of such penalty from any goods in his charge or in the charge or any other officer of Customs, that he can notify to the Magistrate referred to in that section the unrealised amount of such penalty for the purpose of recovery. It cannot be said that any penalty for the first time levied by the appellate authority under the provisions of Section 190 is a penalty adjudged by any officer of Customs. It is conceded that the Central Board of Revenue, being the Chief Customs authority, is not an officer of Customs within the meaning of Section 193. By no stretch of language, having regard to the scheme of the Act or otherwise, can we hold that the penalty levied by the appellate authority is a penalty adjudged by an officer of Customs. It is a penalty adjudged by the appellate authority and that too only with the consent of the owner of the goods under the circumstances mentioned in Section 190. The provisions of Section 193 do not apply to a case where the penalty is for the first time adjudged by the Chief Customs authority as has been done in the present case.
11. it was faintly urged before us that each of the orders of the appellate authority is without jurisdiction and is a nullity. The appellate authority can only make an order of commutation under Section 190 under the circumstances mentioned in that section. There is nothing before us to show that the consent of the owner of the goods ordered to be confiscated was not obtained before the order was commuted to a penalty by the Central Board of Revenue. It cannot be said that the orders have been passed without jurisdiction.
12. in our view, there is a lacuna in the Act inasmuch as the Act does not provide for the realisation by the summary procedure indicated in Section 193 of the amount of a penalty for the first time adjudged by the appellate authority under the provisions of Section 190 of the Sea Customs Act, 1878.
13. We hold that it was not open to the Customs Collector to notify the amounts of Bs. 22,918/- and Rs. 16,000/- to any Magistrate for the purpose of realisation and that the First Class Magistrate, Jamnagar, was not entitled to issue any warrants of attachment on the goods of the Company for realising any of the said amounts. We, therefore, set aside and cancel the warrants of attachment issued by the Magistrate and set aside the order of the Magistrate.
14. Order accordingly.