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Gangadhar Narasingdas Agarwal and ors. Vs. the Union of India (Uoi), Represented by the Secretary to Government of India, Ministry of Finance and ors. - Court Judgment

LegalCrystal Citation
SubjectFERA;Customs
CourtChennai High Court
Decided On
Reported in(1967)2MLJ306
AppellantGangadhar Narasingdas Agarwal and ors.
RespondentThe Union of India (Uoi), Represented by the Secretary to Government of India, Ministry of Finance a
Cases ReferredIn State of Punjab v. Mohar Singh
Excerpt:
- - to safeguard the economic and financial interests of the country, it is necessary that the goods exported by way of sale obtain the best price possible and that the price shall be remitted to the country within the prescribed period and in the prescribed manner. on a reading of sub-section (1) of section 12, i am satisfied that what is required of the exporter is a declaration that the amount given is the full export value of the goods and that the value of the goods has been paid in the prescribed manner. the distinction between a strict and liberal construction has almost disappeared with regard to all classes of statutes, so that all statutes, whether penal or not, are now construed by substantially the same rules that penal provisions, like all others, are to be fairly.....orderp.s. kailasam, j.1. these writ petitions raise the same question and can be dealt with together. as the facts in all the petitions are similar, i will deal with w.p. no. 3949 of 1965. this petition is filed for the issue of writ of prohibition prohibiting the respondents from taking any action in pursuance of the show cause notice dated 17th february, 1965 bearing ref. no. s. nos. 21 and 25 of 1965 issued by the deputy collector of customs, vizagapatnam.2. the respondents received information that seth durgaprakasa and his close relatives having their main business and residential premises at tumsar and nagpur had considerable quantity of hoarded gold, which had not been declared by them under the gold control rules. searches were conducted on 19th and 20th august, 1963, in the.....
Judgment:
ORDER

P.S. Kailasam, J.

1. These writ petitions raise the same question and can be dealt with together. As the facts in all the petitions are similar, I will deal with W.P. No. 3949 of 1965. This petition is filed for the issue of Writ of prohibition prohibiting the respondents from taking any action in pursuance of the show cause notice dated 17th February, 1965 bearing Ref. No. S. Nos. 21 and 25 of 1965 issued by the Deputy Collector of Customs, Vizagapatnam.

2. The respondents received information that Seth Durgaprakasa and his close relatives having their main business and residential premises at Tumsar and Nagpur had considerable quantity of hoarded gold, which had not been declared by them under the Gold Control Rules. Searches were conducted on 19th and 20th August, 1963, in the premises of the petitioners and several documents were seized. According to the respondents, the documents indicated that the petitioners committed offences punishable under Sea Customs Act, 1878 and Customs Act 1962 read with Foreign Exchange Regulation Act, 1947. It is stated that the documents showed that the petitioners had resorted to under-invoicing of Mineral Ores, particularly manganese ores to the extent of a few crores of rupees. In February, 1965, 53 show cause notices were issued to the petitioners, and 50 more subsequently. These related to the shipment of manganese ores from Vizagapatnam. According to the respondents, the extent of under-valuation is about Rs. 2,96,64,535. The show cause notice were issued by the Deputy Collector of Customs, Vizagapatnam, calling upon the petitioners to show cause in writing to the Collector of Customs as to why penalties should not be imposed upon them under Section 167(8) of the Sea Customs Act, 1878, for being persons concerned in the export of manganese ore from Vizagapatnam, in contravention of the restrictions and prohibitions, imposed under Section 19 of the Sea Customs Act, 1878 read with Section 12(1) and the notification No. 12(17)(F)1/47, dated 4th August, 1947 (as amended) issued thereunder and Section 23-A of the Foreign Exchange Regulation Act, 1947. The writ petitions are filed praying for the issue of writ of prohibition prohibiting the respondents from further proceeding with the matter.

3. It is alleged in the show cause notice that the goods were exported without making in respect thereof a proper declaration to the effect that their full export value had been paid in the prescribed manner as required under Section 12(1) of the Foreign Exchange Regulations Act, 1947 with the relevant notifications No. 12(17)(F) 1/47 dated 4th August, 1947 (as amended) issued thereunder and the Foreign Exchange Regulation Rules, 1952. It was further alleged that the goods had been exported in contravention of the restrictions and prohibitions imposed under Section 19 of the Sea Customs Act, 1878 read with Section 12(1) and the Notification No.. 12(17)(F) 1/47, dated 4th August, 1947 (as amended) issued thereunder and Section 23-A of the Foreign Exchange Regulation Act, 1947 which exportation constitutes an offence liable to be punished under Section 167(8) of the Sea Customs Act, 1878.

4. Before setting out the contentions of the parties it is necessary to refer to the relevant provisions of the Foreign Exchange Regulation Act, 1947 and the rules and forms made thereunder, and the Sea Customs Act, 1878. The Foreign Exchange Regulations Act (VII of 1947), came into force on 25th March, 1947. The reasons for passing the Act are given in the preamble, as follows:

Whereas it is expedient in the economic and financial interests of India to provide for the regulation in certain payments, dealings in foreign exchange and securities, and the import and export of currency and bullion...

5. Section 12(1), which the petitioner is alleged to have contravened may be set out;

Payment for exported goods.-(1) The Central Government may, by notification in the Official. Gazette, prohibit the taking for sending out by sea land, sea or air (here after in this section referred to as export) of any goods or class of goods specified in the notification from India directly or indirectly to any place so specified unless a declaration supported by such evidence as may be prescribed or so specified, is furnished by the exporter to the prescribed authority that the amount representing the full export value of the goods has been, or will within the prescribed period, be paid in the prescribed manner.

6. Sub-section (1) of Section 12 enables the Central Government to prohibit by any notification the export of any goods from India, unless a declaration is furnished by the exporter to the prescribed authority that the amount representing the full export value of the goods has been or will within the prescribed period, be paid in the prescribed manner. The Central Government issued a notification dated 4th September, 1947 prohibiting the export of goods to any place outside India, unless a declaration supported by such evidence as may be prescribed is furnished by the exporter to the prescribed authority that the amount represent the full export value of the goods has been, or will within the prescribed period, be paid in the prescribed manner. Apart from the powers conferred on the Central Government under Section 12(1) of the Act, Section 27 of the Foreign Exchange Regulation Act, 1947 also empowered the Central Government by notification in the Gazette to make rules for carrying into effect the provisions of the Act. Sub-section (2)(a) of Section 27 specifically conferred powers on the Government to make rules prescribing Forms and the circumstances of their use for the purposes of this Act. The Foreign Exchange Regulation Rules, 1952 were framed by the Central Government in exercise of the powers conferred by Section 27 of the Foreign Exchange Regulation Act, 1947. Rule 3 provides that a declaration under Section 12 of the Act shall be in one of the Forms set out in the First Schedule as the Reserve Bank may by notification in the Gazette of India specify as appropriate to the requirements of a case. Several Forms are set out in the First Schedule, and the Form admittedly applicable to the present case is G.R. 1. Rule 5 empowers the Reserve Bank, the Collector of Customs or the Postal Authorities, to require the exporter to furnish such evidence in support of the declaration as may satisfy them that the exporter is a person resident in India or has a place of business in India. The authorities may also require the exporter to produce in support of the declaration such evidence as may be in his possession or power to satisfy them: (i) that the destination stated on the declaration is the final place of destination of the goods, exported; (ii) that the invoice value stated in the declaration is the full export value of the goods; and (iii) that the amount representing the full export value of the goods has been or will be paid to the exporter. Form G.R. 1 in the First Schedule requires the exporter to furnish information as required in the Form. The exporter is also required to make a declaration, which may be set out in full.

I hereby declare that I am the seller/consignor of the goods in respect of which this declaration is made and that the particulars given above are true and (a) that the invoice value declared is the full export value of the goods and is the same as that contracted with the buyer, (b) that this is a fair valuation of the goods which are unsold. I/my principals undertakes that I/they will deliver to the bank mentioned below the foreign exchange/rupee proceeds resulting from the export of these goods on or before...

7. Section 22 of the Foreign Exchange Regulation Act prohibits a person, when complying with any order or direction under Section 19 or with any requirement under Section 19-H or when making any application or declaration to any authority or person for any purpose under this Act, from giving any information or making any statement which he knows or has reasonable cause to believe to be false, or not true, in any material particular. If any person contravenes the provisions of Sections 4, 5, 9 or Section 12(2) or any rule or direction or order made thereunder, he shall be liable to penalty not exceeding three times the value of the foreign exchange in respect of which the contravention has taken place or five thousand rupees, whichever is more under Section 23(1)(a) of the Act. Section 23(1)(b) provided that for the offences above stated a person upon conviction by a Court shall be punishable with imprisonment for a term which may extend to two years or with fine or with 'both. Section 23(1-A)(a) provided that a person who contravenes any of the provisions of the Act other than those referred to in Sub-section (1) of Section 23, and Section 19 shall, upon conviction by a Court, be punishable with imprisonment for a term which may extend to two years, or with fine, or with both. Section 23-A provided as follows:

Without prejudice to the provision of Section 23 or to any other provision contained in this Act, the restrictions imposed by sub-sections (1) and (2) of Section 8, Sub-section (1) of Section 12 and Clause (a) of Sub-section (1) of Section 13 shall be deemed to have been imposed under Section 19 of the Sea Customs Act, 1878 (II of 1878) and all the provisions of that Act shall have effect accordingly, except, that Section 193 thereof shall have effect, as if for the word 'shall' therein the word 'may' were substituted.

8. Section 19 of the Sea Customs Act, 1878 empowers the Central Government from time to time, by notification in the Official Gazette to prohibit or restrict the bringing or taking by sea or by land goods of any specified description into or out of India across any customs frontier as defined by the Central Government. By virtue of Section 23-A of the Foreign Exchange Regulation Act, 1947, the restriction imposed by Sub-section (1) of Section 12 is deemed to have been imposed under Section 19 of the Sea Customs Act, and all the provisions of the Sea Customs Act will take effect. Consequently a contravention of Sub-section (1) of Section 12 will be contravention of Section 19 of the Sea Customs Act, punishable under Section 167(8) of the Sea Customs Act. Section 167(8) of the Sea Customs Act provides as follows:

If any goods, the importation or exportation of which is for the time being prohibited or restricted by or under Chapter IV of this Act, be imported into or exported from India contrary to such prohibition or restriction, or if any attempt be made as to import or export any such goods, or if any such goods be found in any package produced to any officer of Customs as containing no such goods, or if any such goods, or any dutiable goods be found either before or after landing or shipment to have been concealed in any manner on board of any vessel within the limits of any port in India, or if any goods, the exportation of which is prohibited or restricted as aforesaid, he brought in any wharf in order to be put on board of any vessel for exportation contrary to such prohibition on restriction, such goods shall be liable to confiscation, and any person concerned in any such offence shall be liable to a penalty not exceeding three times the value of the goods, or not exceeding one thousand rupees.

9. An examination of the provisions of the Foreign Exchange Regulation Act, 1947 and the Sea Customs Act, 1878 would reveal that contravention of Section 12(1) of the Foreign Exchange Regulation Act is punishable not only under Section 23(1)(a) of the Foreign Exchange Regulation Act, but also under Section 167(8) of the Sea Customs Act. While Section 23(1)(b) of the Foreign Exchange Regulation Act provides that contravention of Section 12(2) is punishable on conviction with imprisonment for a term which may extend to two years, or with fine, or with both. Section 23-A of the Foreign Exchange Regulation Act, 1947 read with Sections 19 and 167(8) of the Sea Customs Act, provides that without prejudice to the provisions of Section 23(1)(a) the goods are liable to confiscation and the person concerned in any such offence shall be liable to a penalty not exceeding three times the value of the goods. The contravention of Section 12(2) is punishable under Section 23 of the Act, and the offender is liable to a penalty not exceeding three times the value of the foreign exchange in respect of which the contravention has taken place, whereas in the case of an offence under Section 12(1) of the Foreign Exchange Regulation Act, to which Section 167(8) of the Sea Customs Act, is attracted the punishment would extend to confiscation of the goods and penalty not exceeding three times the value of the goods. The punishment under Section 167(8) of the Sea Customs Act is far more severe, in that the goods are liable to be confiscated the penalty may extend to three times the value of the entire goods, whereas under Section 23(1)(a) the penalty can only be three times the value of the foreign exchange in respect of which the contravention has taken place. Besides the provisions above referred, Section 22 of the Foreign Exchange Regulation Act prohibits a person when complying with any order or direction under Section 19 or when making any application or declaration to any authority or person for any purpose under the Act from giving any information or making any statement which he knows or has reasonable cause to believe to be false, or not true, in any material particular. If this section is contravened, the offender is liable to be punished under Section 23(1)(b) that is with imprisonment for a term which may extend to two years. But there is no provision for confiscation or penalty under Section 23(1)(a) of the Act.

10. The main attempt of the learned Counsel for the petitioner was to avoid the clutches of Section 12(1) of the Act. According to his submission, if the facts alleged by the prosecution are made out, the offence may amount to one under Section 12(2) or Section 22 punishable under Section 23(1)(a) of the Act, but would not amount to one under Section 12(1) of the Act. In support of his contention that Section 12(1) is not applicable to the facts of this case, the learned Counsel for the petitioner submitted that what is required under the sub-section is that the exporter should declare to the prescribed authority that the amount representing the full export value of the goods has been or will within the prescribed period be paid in the prescribed manner, that is an undertaking, that the full export value of the goods will be paid in the prescribed manner and when once that undertaking has been given the conditions required under Section 12(1) are complied with. According to the learned Counsel the sub-section does not make it incumbent on the exporter to furnish the true export value of the goods, and all that he is called upon to do is to undertake that the amount as noted in the invoice would be paid in the prescribed manner. The purpose of the enactment is to safeguard the economic and financial interests of the country and for that purpose to provide to achieve this purpose the Central Government is empowered to prohibit the export of any goods, unless certain conditions are fulfilled. To safeguard the economic and financial interests of the country, it is necessary that the goods exported by way of sale obtain the best price possible and that the price shall be remitted to the country within the prescribed period and in the prescribed manner. For achieving this object Sub-section (1) of Section 12 provides that the Government may prohibit the export of any goods unless a declaration supported by such evidence as may be prescribed or so specified is furnished by the exporter to the prescribed authority that the amount representing the full export value of the goods has been, or will within the prescribed period be, paid in the prescribed manner. The authorities my require the exporter to produce evidence in support of the declaration in the prescribed manner for establishing that the amount representing the full export value of the goods has been paid in the prescribed manner. The contention of the learned Counsel for the petitioner is that what is required of exporter is an undertaking from him that the full export value of the goods has been paid and that the declaration does not embrace the statement that the full export value given is correct. On a reading of Sub-section (1) of Section 12, I am satisfied that what is required of the exporter is a declaration that the amount given is the full export value of the goods and that the value of the goods has been paid in the prescribed manner. To hold otherwise would result in defeating the very object of the section. If the correct value is not given and the undertaking is restricted to realisation of the under-valued amount, the full price of the exported goods will not be available to the country. The evidence which has to be adduced in support of the declaration by the exporter is for satisfying the prescribed authority (1) that the amount represents the full export value of the goods and (2) that the amount has been paid. Sub-section (1) of Section 12 in my view does not admit of any ambiguity. Even if it is taken that the words of the sub-section are not very clear, the Court may refer to the rules made under the, provisions of the Act, where such rules art directed by the statute to be read as part of the Act. Sub-section (1) of Section 12 as already stated, provides that the exporter may be required to produce such evidence as may be prescribed. The word 'prescribed' is defined as meaning 'prescribed by rules made under this Act (Foreign Exchange Regulation Act, 1947).' The rules framed under the Act are the Foreign Exchange Regulation Rules, 1952. Rule 3 provides that the declaration shall be in the Form set out in the First Schedule, the relevant Form being G.R.I Rule 5 provides that the Reserve Bank or the Collector of Customs or the postal authorities may require the exporter to produce in support of his declaration such evidence to satisfy them that the invoice valued in the declaration is the full export value of the goods. The Form G.R.I which is referred to in Rule 3, requires that the seller or the consignor of the goods should declare that the invoice value declared is the full export value of the goods and is the same as that contracted with the buyer. He has also to undertake that he will deliver to the bank the foreign exchange rupee proceeds resulting from the export of these goods on or before a particular date. While Rule 5 enables the authorities to satisfy themselves that the invoice value stated in the declaration is the full export value of the goods, the Form requires that the exporter should declare that the invoice value is the full export value of the goods. Even assuming for the purpose of argument that the working of Sub-section (1) of Section 12 is not clear, Sub-section (1) read with Rule 5 and the undertaking in the Form G.R. I make it clear that the declaration to be given by the exporter is not only that the value of the goods will be paid in the prescribed manner but also that the full export value of the goods given is the correct value. Craies on Statute Law, 6th Edition at page 157, states as to how far the assistance can be derived from the rules for construing the language of the Act. The learned author observes:

Where the language of an Act is ambiguous and difficult to construe the Court may for assistance in its construction refer to rules made under the provisions of the Act, especially where such rules are by the statute, authorising them directed to be read as part of the Act.

11. It is stated on the authority of James and Mellish, L.J. in Ex parte Wier, In re (1871) L.R. 6 Ch. App. 875 :

recourse may also be had to rules which have been made under the authority of the Act, if the construction of the Act is ambiguous and doubtful on any point, and if we find that in the rules any particular construction has been put on the Act, it is our duty to adopt and follow that construction.

12. Learned Counsel for the petitioner submitted that recourse to the Rules and the Form should not be resorted to in this case, as the Rules and the Form were not made contemporaneously with the section and, therefore, would not be of any real assistance. In support of his contention, he relied on a Bench division of this Court in Rathinamma v. Secretary of State : AIR1939Mad963 . The Bench while not questioning the correctness of the passage in Craies on Statute Law and the observation of James and Mellish, L.J. in Ex parte Wier (1871) L.R. 6 Ch. App. 875 , observed that the rules were not made part of the Act, that there was no ambiguity in the wording of the proviso and that in the circumstances there was no need to call in aid the rules in the matter of interpretation. The Bench was of the view that the rules went beyond the Act in that particular case. In the case cited it was held that the wording of the proviso was free from ambiguity and that its effect was that no cess should be leviable under the Act in respect of land held under ryotwari settlement, which was classified and assessed as wet, unless the land be irrigated by using without due auhority water from a source different from or in addition to that which had been assigned by the revenue authorities or adjudged by a competent civil Court as the source of irrigation of the land. In those circumstances, the rules were found to go beyond the Act, as they were contrary to the proviso to the section. That decision is therefore not helpful in deciding this case. Relying on the observations in Ex parte Wier (1871) L.R. 6 Ch. App. 875 , Chagla, C.J. in Pramod C. Bhat v. Kanwar Raj Nath (1954) Bom.L.R. 873, held that in cases where there was ambiguity in the language used by the Legislature, or where more than one construction was possible, then the rules framed might help the Court in coming to the right conclusion as to the construction to be placed upon a particular provision in the law. It was submitted on behalf of the petitioner, that as the provisions of Section 12(1) of the Foreign Exchange Regulation Act being penal in nature should be construed strictly. A passage in Craies on Statute Law, 6th Edition, at page 530 to the effect that unless penalties are imposed in clear terms they are not enforceable and that when the Legislature imposes a penalty the words imposing it, must be clear and distinct, was relied on. At page 531 the position is summed up by the learned author as follows:

The distinction between a strict and liberal construction has almost disappeared with regard to all classes of statutes, so that all statutes, whether penal or not, are now construed by substantially the same rules that penal provisions, like all others, are to be fairly construed according to the Legislative intent as expressed in the enactment, the Courts refusing on the one hand to extend the punishment to cases which are not clearly embraced in them, and on the other equally refusing by any mere verbal nicety, forced construction, or equitable interpretation to exonerate parties plainly within their scope.

13. Learned Counsel for the petitioner strongly relied on a decision of the Bombay High Court in Hamad Sultan v. Abrol and Anr. Misc. App In. No. 376 of 1957 at page 100 of Compilation of Judgments in Customs Cases, 1958, compiled by the Central Board of Revenue. In that case it was found that the statements made about the invoice value and the export value of the goods in the declaration submitted to the customs authorities and about the price in the invoice and the certificate submitted to the Exchange Control Authorities were correct. Dealing with the contention that in order to comply with the provisions of Section 12(1) of Foreign Exchange Regulation Act, 1947, the declaration that is made must be a true declaration, the Court observed at page 111:

In my view, the offence of violation of Section 22 is committed by making a statement which the person making it knows or has reasonable cause to believe to be false or not true in any material particulars. That offence is distinct and different from the offence of violation of the provisions of Section 12(1) of the Foreign Exchange Regulation Act, 1947. The provisions of Section 12(1) are violated when no declaration is furnished at all or when the purported declaration is one which cannot be regarded as a declaration within the meaning of Section 12(1) of the Foreign Exchange Regulation Act, 1947.

14. The correctness of this statement standing by itself cannot be questioned. But the learned Judge proceeded to observe that in his view whatever other offences the petitioner might have committed in making such statement, it could not be said that he had committed the offence of violating the provisions of Section 12(1) of the Act. In coming to the conclusion that learned Judge was of the view that the requirements of Section 12(1) had been satisfied by the petitioner undertaking that he would deliver to he bank the foreign exchange proceeds resulting from the export of the goods. With respect, I am unable to agree with the reasoning or the conclusion arrived at by the learned Judge. As already stated, on a construction of Section 12(1), I am of the view that the declaration contemplated is not only that the exporter had paid the foreign exchange resulting from the export of the goods, but also that the full export value given is the true value. The Calcutta High Court in R.N. Ghose v. Collector of Central Excise and Land Customs Calcutta Matter No. 78 of 1952, in Compilation of Judgments in Customs cases 195 at page 197 expressed its view as follows:

These notifications impliedly suggest that the Customs authorities might call for production of evidenece for the purpose of being satisfied prima facie that the declaration as to 'full export value', Was correct especially in cases where they had reasons to believe that' full export value 'had not been stated in the declaration furnished.

15. An attempt was made to suggest that the provisions of Sub-section (2) of Section 12 would apply in this case. A reading of the sub-section would show that the sub-section is applicable only to goods where the sales has not been completed. Sub-section (2) of Section 12 is applicable to consignors of goods, that is persons entitled to sell or procure the sale of the goods, that is to state before the actual sale. In such cases the permission of the Reserve Bank is required for doing or refraining from doing any act with intent to secure that the sale of the goods, is delayed to an extent which is unreasonable or to secure payment for the goods otherwise than in the prescribed manner or where the payment does not represent the full amount payable by the foreign buyer. It is admitted in this case that the goods had already been sold and the transaction of sale had been completed by the time the declaration was given. Section 12(2) has therefore no application.

16. It was next contended by the learned Counsel for the petitioner that even assuming that Section 12(1) requires the exporter to give a correct full export value and an incorrect statement is made, it cannot have the effect of nullifying the declaration, thereby rendering the goods, which had been exported with the permission of the authorities, prohibited goods. Learned Counsel for the petitioner referred to the Foreign Exchange Regulation Rules, 1952 whereby the authorities are entitled to require an exporter to furnish evidence in support of the declaration for satisfying themselves that the invoice value stated in the declaration is the full export value of the goods. The authorities after looking into the statement in the invoice and after perusing the evidence furnished by the exporter were satisfied about the correctness of their value and permitted the goods to be exported. If subsequently it was discovered that the value was not correct in certain particulars, it was submitted that the effect will not be failure to comply with the requirements of Section 12(1). Learned Counsel pointed out that there may be variation of prices due to the quantity or quality or change in the market rate, which would result in the amount of full export value given not being the actual value realised by sale.

17. Reference was made to the Income-tax Act where a return with false particulars is not treated as no return. If there are incorrect particulars or false statements, punishments are provided for furnishing such incorrect particulars or false statements. But the authorities are not empowered to proceed on the basis that no return had been submitted. Section 23(4) of the Income-tax Act, 1922 provides that when a person fails to make a return, the Income-tax Officer shall make the assessment to the best of his judgment, whereas he cannot do so when an incorrect or incomplete return is furnished. Section 271 of the Income-tax Act, 1961 deals with cases where the person fails to furnish information, while Section 277 deals furnishing a false statement. The Advocate-General on behalf of the State relied on the decision in In re Abhey Ramchannilal A.I.R. 1923 AII.197, where it was held that Section 23(2) applied to an assessee who made a return which he knew that it was a bona fide return and in which he had put in his total income to the best of his then information, and yet there was some omissions on his part due to some cause or other, but not to a case where the assessee deliberately failed to comply with the rule contained in Section 22(3). The Court expressed its view that a return which deliberately failed to comply with the rule contained in Section 22(2) that the return was to be of the total income of the assessee was no return at all within the meaning of that rule of law. When the full export value given is correct, subject to variation of the particulars due to change in quantity or quality or fluctuation in the market rate, the full export value given cannot be said to be not true. But when the actual full export value of the goods was deliberately not given or a low value was given, as alleged in this case, for the purpose of secreting the balance of foreign exchange, it could not be said that the declaration regarding the full export value of the goods was given as required in the section. The result would be that the declaration will not be one according to the requirements of Section 12(1). The prohibition imposed by the Central Government regarding the export of goods would not. stand lifted, as the requirement of this section remain unfulfilled.. The mere fact that the authorities at that time did not know the correct full export value of the goods or were induced to accept the figure given by the exporter and allowed the goods to be exported would not have the effect of removing the goods from the category of prohibited goods. A contravention of Section 12(1) of the Foreign Exchange Regulation Act, 1947 would be made out and the offence would be punishable under Section 167(8) of the Sea Customs Act, 1878.

18. It was next contended by the learned Counsel for the petitioner that the notification of the Central Government dated 4th August, 1947 prohibiting the export of all goods is contrary to the powers vested in it under Section 12(i) of the Act. It was submitted that what Section 12(1) empowered the Central Government was to prohibit the export of any goods or class of goods specified in the notification, and not all goods as they have done in the notification. Reference was also made to Section 19 of the Sea Customs Act where the Central Government is empowered to prohibit the bringing into or taking out of India the goods of any specified description. In Stroud's Judicial Dictionary, 3rd Edition, the meaning of the word 'any' is given as 'a word which excludes limitation or qualification.' In Victorian Chamber of Manufacturers v. The Commonwealth 67 C. L.R. 355, the High Court of Australia in construing the words in Regulations 22(1) and 22(2) of the National Security (Prices) Regulations empowering the Minister to 'declare any goods to be declared goods' and 'any service to be declared service' for the purpose of the Regulations, held that the declarations by the Minister of 'all goods in the possession or under the control of any person in Australia' and of 'all services supplied or carried on in Australia' were authorised by Regulations 22(1) and (2) respectively. At page 340 it was held that the Minister had the power to declare any goods or any services to be declared goods or services and that it was obvious that under such a power he might declare some or all goods or services. At page 345 dealing with the contention that the Minister must specifically describe the goods, the prices of which he considered should be controlled, the Court held that, if the Regulation required that the classes of goods should be described, there would be considerable substance in the contention, but the Regulation empowered the Minister to declare the goods to be declared goods for the purposes of the Regulation. Relying on the definition of the word 'any' in Stroud's Judicial Dictionary, the Court held;

'Any goods' therefore includes all goods except where this wide construction is limited by the subject-matter and context of a particular statute.

The contention of the learned Counsel for the petitioner that the Central Government acted beyond the scope of Section 12(1) in notifying all the goods cannot therefore be accepted.

19. It was next contended that Rule 3 of the Foreign Exchange Regulation Rules, 1952 which requires the exporter to make declaration in the prescribed form C.R.I. that the invoice value declared is the full export value of the goods and is the same as that contracted with the buyer, is ultra vires of the powers conferred on the Government. This contention has to be rejected, in view of my holding that Section 12(1) by itself contemplates a declaration that the invoice value declared is the full export value of the goods. Further, the Government is also empowered to frame rules prescribing forms and circumstances of their use under Section 27 of the Foreign Exchange Regulation Act. Further, Section 12(1) itself refers to declaration supported by such evidence as may be prescribed, that is, by Rules. Section 12(1) will have to be read along with the Rules framed and the forms prescribed and the rules cannot be said to be invalid as beyond the rule-making powers of the Government.

20. It was next contended that the Section 23-A of the foreign Exchange Regulation Act was amended by Act LV of 1964, and the provision which deemed the restriction imposed under Section 10 of the Sea Customs Act had been repealed. The amended section provides that the restrictions imposed by Sub-section (1) of Section 12 and other sub-sections referred to shall be deemed to have been imposed under Section 11 of the Customs Act, 1962. It was further pointed out that after the repeal of the Sea Customs Act, 1878, by Customs Act LII of 1962 no further proceedings can be taken for contravention of the provisions of Section 12(1) of the Foreign Exchange Regulation Act before the amendments were introduced. The offences relate to export of mineral ores in 1956 and 1957 long before the Amending Act, LV of 1964 and the repeal of the Sea Customs Act, 1878 by Customs Act LII of 1962. Section 6(e) of the General Clauses Act, 1897 is a complete answer to this contention. Section 6(e) of the General Clauses Act may be extracted.

Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter made then, unless a different intention appears, the repeal shall not (e) affect investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.

21. Unless a different intention appears, the repeal shall not affect any investigation, or legal proceeding and any such investigation or legal proceeding may be instituted or continued as if the repealing Act or Regulation had not been passed. In State of Punjab v. Mohar Singh (1955) S.G.J. 25 : A.I.R. 1955 S.C. 84, it was held at page 88 as follows:

Whenever there is a repeal of an enactment, the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion.

This contention has therefore to be rejected.

22. In the result all the contentions raised by the learned Counsel for the petitioner fail and this petition is dismissed with costs. For the reasons given in this judgment W.P. No. 1592 to 1594 of 1966 and 1601 of 1966 are also dismissed with costs. Counsel's fee Rs. 250 in each writ petition.


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