(1) This is a petition under Article 228 of the Constitution for Issue of an appropriate writ to quash the order dated 5-4-1961 of the Collector of Customs Madras directing confiscation of the petitioner's Chevrolet, 1959 model motor car bearing registration No. S. S. 7955 and imposing on him a penalty of Rs. 11000/- under section 167(8) of the Sea Customs Act, 1878. The petitioner is said to be the Chief Executive of the Indian division in film business of Shaw Brothers Ltd., Singapore. With a British passport the petitioner, apparently for business purpose, arrived in this country from Singapore, and left on wore than one occasion du-ring the period from September 1959 to October 1960. For his use during his visits to Madras he imported his car on 24-9-1959 by s. s. Rajula under cover of Carnet de passages en douane dated and issued by the Automobile Association of Singapore. The Import was under the provisions of the Customs Convention on the temporary importation of private road vehicles. This is an International Convention adopted by the United Nations Conference on Road and Motor Transport held at Geneva in 1949, and the object of the convention is to facilitate development of international touring.
The Indian Republic is one of the signatories to this Convention. Under its provisions importation of motor vehicles is permitted, subject to certain terms and conditions, without payment of import duties and import taxes and free of import prohibitions and restrictions. One of such conditions is that import permit shall he valid for a period not exceeding a year from the date of issue, and that on the, expiry of the period, the, vehicle should he exported from the country of import. The petitioner, therefore, exported his car from Madras to Singapore on 19-8-1960. But he again, under cover of similar temporary importation papers, imported the same car in Madras by s. s. 'State of Madras' on 21-9-1960. The petitioner himself cleared the car from the customs he having arrived at Madras on 13-8-1960. On 4-10-1960, he left for Singapore by Air leaving the car in the custody of one N. Ramachar who is said to be the Chief Representative in India of Shaw Brothers Ltd.
On 2-12-1960 the car was produced by Ramachar accompanied by a representative of Messrs. Thomas Cook and Son, Madras before the customs authorities for export to Singapore under a shipping bill dated 28-11-1960. Finding that the car had been imported Into this country by the petitioner under the Triptyque system, the customs authorities, on suspicion, instituted an investigation as a result of which they found that the petitioned was in India only for about three months during the period from 24-9-1959 to 19-8-1960 and for about 22 days between the period from 13-9-1960 to 4-10-1960 and that during his absence, the car was in the custody of Ramachar during bath the periods. Following in enquiry, the Collector of Customs found that the car had been used by Ramachar and certain others who were by no means persons normally resident outside India and that the petitioner has thereby violated the Triptyque regulations and forfeited his right to the Triptyque concession. At the enquiry it further emerged that during the relevant periods, the car had covered a running distance of 9000 and 800 miles respectively and that its two shock absorbers were also removed without the knowledge And express permission of the customs from the car on the ground that they were damaged. The actual operative part of the order issued by the Collector of Customs does not, however, refer to the shock absorbers.
(2) The order of the Collector of Customs is impugned by the petitioner on two grounds: (1) that the use of the car by Ramachar and certain others who are normally residents of this country is not a violation of the terms of the Convention and (2) that even if it is, it does not attract the penalty provided by section 167(8) of the Sea Customs Act. I have no doubt that the first ground is devoid of any substance. The terms of the Customs Convention relevant to this are contained in Articles 2(1) and 11(1).
'Article 2(1). Each of the contracting States shall grant temporary admission without, payment of import duties and import taxes and free of import prohibitions and restrictions, subject to re-exportation and to the other conditions laid down in this Convention, to vehicles owned by person normally resident outside its territory which are imported and utilized, for their private use on the occasion of temporary visit. either by the owners of the vehicles or by other Persons normally resident Outside its territory.'
'Article 11(1) Vehicles admitted under the cover of temporary importation papers may be, used, for their private use, by third persons duly authorised by the holders of the papers, provided that those third persons normally resident outside the country of importation and also fulfil the other conditions laid down in this convention. The customs authorities of the contracting States have the right to require evidence that such persons. have been duly authorised by the holders of the papers' and fulfil the aforesaid condition, If this evidence does not appear sufficient, the customs authorities may refuse use of the vehicle in their country under cover of the papers. In the case of vehicles which have been. hired, each of contracting State may, in the case of fear of abuse, require that the holder of the temporary Importation paper be present at the time of importation of the vehicle.'
Article 4(1) refers to replaced parts which too are required to be re-exported or abandoned free of all expense to the Exchequer concerned or destroyed under official supervision. But not much turns upon this particular article with reference to the shock absorbers in this case. The petitions. contends that the effect of Articles 2(1) and 11(1) is not to prohibit the under of the car in the manner already mentioned. It is stated that the import of the car in this country on both the occasions was for the personal use of the petitioner during his visits and the car was actually put to such use and that, therefore the fact that the car was sparingly used by Ramachar for the purpose of the business of Shaw Brothers Ltd., did not amount to a violation of the articles.
In my opinion, this contention cannot obviously be accepted. The two articles clearly contain a restriction, Without exception, against the car being used by the residents of this country. The entire object of the concession under the Customs convention is to facilitate development of international touring and the scope of the restrictions under the said articles should he appreciated in the context of that object. A reference to the, other articles in the convention confirms the view that the concession is limited to the personal and private use of the car by it non-resident importer or non-resident third persons duly authorised by the holder of the importation papers. I consider, therefore, that the Collector of Customs properly understood the true scope of Arts. 2(1) and 11(1) as also other relevant articles in finding that there has been misuser of the car in violation of the conditions of the Convention. I am not also satisfied that this finding of the Collector of Customs is not a purely factual one; but there is no need in this case to dispose of the first ground of the petitioner merely on this basis.
(3) The second contention, however, appears to be substantial and I am inclined to accept it. The point of it is whether by the misuser of the car as aforesaid, the Petitioner Alas not forfeited his privilege in relation to it under the carnet. By the laws of this country conceived to build up its own economy, customs and tariff barriers have been raised against import of goods subject to varying terms and conditions. This is a phenomenon familiar to most of the free countries of the world. Exemption of the car from liability to customs duties is contained in notification No. 224 dated 3-8-1958, which has been issued by the Ministry of Finance in exercise of the general power provided thereof under See. 23 of the Sea Customs Act. The exemption is subject to certain 'limitations and conditions stipulated in the notification, one of them being that it is subject to the provisions of the Customs Convention. Prohibition,,; against import of certain specified goods, which include motor cars, is to be found in clause 3 of, the Imports (Control) Order, 1955 made pursuant to sections 8 and 4 of the Imports and Exports (Control) Act, 1947. But the bar, of import of the car in question is saved by Sub-clause (n) of clause, 11 of the Order which reads:,'
'(n) from any country, except Portuguese possessions in India, which are exempt from customs duty under the Government of India, Ministry of Finance (Department of Revenue) notification No. 224 dated the 3rd August, 1958, provided that the vehicles and component parts thereof temporarily admitted under this provision without Import Trade Control Restrictions shall be re-exported within the period stipulated in the 'Triptyque' or 'Carnet-de-passage' failing which this order shall apply to the vehicle and component parts and they shall be deemed to he goods of which the import has been prohibited under the Sea Customs Act.
Provided that nothing in these exceptions shall prejudice the application to any goods of any other prohibition or regulation affecting the Import of goods that may be in force at the time such goods are imported.'
It is upon the proper construction of this sub-clause on which depends mainly the tenability of the, second ground, there is a difference at, the Bar. Counsel for the petitioner argues that the privilege under the sub-clause will be at an end only upon one and only contingency namely, failure to re-export the vehicle within the period stipulated in the 'Triptyque' or 'carnet-de-passage.' On such failure, the import of the car shall be deemed to he prohibited under section 19 of the Sea Customs Act read with sub-section (2) of section 3 of the imports and Exports Control Act, 1947. The learned Additional Government Pleader on the other hand, contends that the same result will follow too on an infringement of any one or more of the other terms of the said notification No. 224 which takes in the conditions of the Convention, and relies on the first part of sub-clause (n).
As already mentioned, the conditions of the Convention Include not only restriction on the nature and manner of user of the car but also the requirement that it should be re-exported within the specified period. If the construction contended for by the Government is to be accepted, the proviso to the sub-clause, excepting the default clause would have been unnecessary or would have been differently worded. The proviso singles out only the requirement as to re-exportation and provides for the consequence of failure to conform to that restriction. If the intention of sub-clause (n) were that the exemption should cease to apply on breach of any of the limitations and condition, apart from re-exportation, the first part of the proviso to that sub-clause will be wholly inappropriate and the default clause would have been more comprehensively worded. As the sub-clause stands at the moment, I am unable to read it to mean that the deeming provision in the default clause will be attracted by a misuser of the car in violation not of the requirement as to re-export but of the other limitations and conditions of Notification No. 224. The confiscation of the car and imposition of the penalty have been made under item 8 of section 167 of the Sea Customs. Act which will apply to importation or exportation of goods contrary to their prohibition or restriction for the time being under Chapter IV of the Act. But that Chapter will come into play on proper construction of sub-clause (n) aforesaid, only where there is violation of the requirement to re-export the car within the specified period and not of the other limitations and conditions of notification No. 224. The order of the Collector of Customs cannot, therefor, be sustained. This Court is not in the instant petition, however, concerned with the question whether, the petitioner has incurred any other liability by reason of the misuser of the car.
(4) The petition is allowed and the rule nisi is made absolute. There will be no order as to costs.
(5) Petition allowed.