M.L. Pendse, J.
1. This petition is companion to Miscellaneous Petition No. 1114 of 1979 and in view of my judgment in that petition, the petitioners are entitled to succeed in this petition. The declaration that the Exports (Control) Amendment Order has no application to the export of Argenti Nitras has already been given in the earlier petition and no fresh declaration in this petition is required to be given. The petitioners are entitled to the relief claimed in prayer (b)(i) of paragraph 30 of the petition. There is one more relief claimed by the petitioners because of certain developments subsequent to the filing of the petition.
2. The petition was filed on July 4, 1979 and the petitioners received a show cause notice dated June 29, 1979 from the office of the Additional Collector of Customs, Bombay. By this show cause notice, the Petitioners were informed that the value of the goods declared while presenting the shipping bills and the declaration as to the truth of its contents was not accurate and that constitutes an offence of mis-declaration under Section 50(2) of the Customs Act, 1962. The Petitioners were called upon to show cause why action should not be taken against them under Section 114 of the Customs Act and the goods should not be confiscated under Section 113(d) read with Section 50(2) of the Customs Act. The petitioners have amended the petition to challenge the validity of this show cause notice and have prayed that this show cause notice should be withdrawn or cancelled.
3. Mr. Rana, the learned Counsel appearing in support of the petition, submitted that the show cause notice was issued as the Department felt that the article Argenti Nitras falls within entry No. 55 in Part 'A' of Schedule I of Exports (Control) Amendment Order and because the declaration under Section 50(2) of the Customs Act was not genuine and did not reflect the true value of the goods under consignment, Mr. Rana submits that the first ground for giving show cause notice does not survive in view of the declaration given in the earlier petition and the second ground is without any merit. Mr. Rana submits that the petitioners have declared the price while presenting the shipping bills which are in consonance with the price mentioned in the contract entered with the foreign buyers and by no stretch of imagination the said price can be said to be a mis-declaration. There is merit in this submission of the learned Counsel. Mr. Rana also relied upon a judgment in the case of Bird and Co. Private Ltd. v. Assistant Collector of Customs for Exports, Calcutta and Ors. reported in : AIR1971Cal62 where it has been held that Section 50 of the Customs Act merely states the duty of the exporter and does not deal with mis-declaration in a shipping bill. In my judgment, there is no mis-declaration in the shipping bill presented by the petitioners and the show cause notice issued on that count was wholly illegal and deserves to be quashed.
4. The petitioners arc entitled to the relief claimed in prayer (b)(v) of paragraph 30 of the petition. Save and except the reliefs in prayer (b)(iv) and (v), the other reliefs claimed in the petition are not required to be granted. In the circumstances of the case, there will be no order as to costs.
5. Mr. Dhanuka, at this stage, applies that the operation of this order should be stayed for a period of 3 weeks from today. The stay is granted subject to the condition that the petitioners would be entitled to export the quantity of 7,500 kgs. of Argenti Nitras to M/s. Pinstripe Limited of Manchester as stated in the contract dated March 29,1979. This quantity of 7,500 kgs. is fixed for the period from April 1979 to the end of August 1979 at the rate of 1,500 kgs. per month. The principle in fixing this quantity is identical one as adopted in the earlier petition. The Prothonotary and Senior Master to act on the minutes of the. order:
ORDER dated 27.7.1979 of the High Court of Bombay on Appeal Nos. 338 of 1979 and 339 of 1979.
Apart from the question whether silver nitrate is a drug and does not fall within the category of silver salts, silver chemical and silver compound with more than 50% of silver content as contemplated by the Export Control Order, another substantial question arises in appeal whether the Amendment Order affects the pre-ban contract, which is an arguable question. Hence, we are admitting the appeal.
So far as the interim relief is concerned, the Union Govt. has prayed for a total stay of the order of the Trial Judge with a view to disable the Respondents from complying with the counsel for each of the parties we are not inclined to grant the stay with regard to the pre-ban commitment.
Mr. Dhanuka argued that one contract is upto March, 1980 and if at all the Petitioner is permitted to export silver nitrate, stay should be granted for a limited period of a month or two. We are not sure when the Appeal will be heard. History shows that the matter was argued from time to time for interim reliefs. Hence, we are not granting any stay restricted to any period.
The appellants to be at liberty to move the Chief Justice to fix a date early hearing of the appeal.
In so far as declaratory relief is concerned there will be stay. Mr. Jethmalani apprehends that the stay of the declaratory part of the order may affect other petitions. Mr. Jethmalani's apprehension is misplaced.