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Bird and Co. (Private) Ltd. Vs. Assistant Collector of Customs for Export, Calcutta and ors. - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtKolkata High Court
Decided On
Case NumberMatter No. 461 of 1968
Judge
Reported inAIR1971Cal62
ActsCustoms Act, 1962 - Sections 11 and 50
AppellantBird and Co. (Private) Ltd.
RespondentAssistant Collector of Customs for Export, Calcutta and ors.
Appellant AdvocateP.P. Ginwalla, Adv.
Respondent AdvocateG.P. Kar, Adv.
DispositionPetition allowed
Cases ReferredKarl Ettlinger & Co. v. Chagandas
Excerpt:
- .....to sell and south african canvas co. (pt.) ltd., a company carrying on business, inter alia, in south africa agreed to buy 50,000 yards of hessian cloth of certain specifications c & f lourenco marques and another consignment of 50,000 yards of hessian cloth of certain other specifications c & f lourenco marques.3. it is the case of the petitioner that the ultimate destination of the goods was unknown to the petitioner at the time the contract was concluded. in any event, the petitioner would have discharged all its obligations under the aforesaid agreement if the petitioner has shipped the said goods to lourenco marques andthe petitioner was not concerned with their ultimate destination.4. thereafter on or about the 5th july, 1967 the petitioner received from the south african.....
Judgment:
ORDER

T.K. Basu, J.

1. The petitioner Bird & Company (Private) Limited carries on business, inter alia, in the purchase and sale and export of lute fabrics.

2. According to the petitioner, by an exchange of telegrams, it agreed to sell and South African Canvas Co. (Pt.) Ltd., a Company carrying on business, inter alia, in South Africa agreed to buy 50,000 yards of Hessian cloth of certain specifications c & f Lourenco Marques and another consignment of 50,000 yards of Hessian cloth of certain other specifications c & f Lourenco Marques.

3. It is the case of the petitioner that the ultimate destination of the goods was unknown to the petitioner at the time the contract was concluded. In any event, the petitioner would have discharged all its obligations under the aforesaid agreement if the petitioner has shipped the said goods to Lourenco Marques andthe petitioner was not concerned with their ultimate destination.

4. Thereafter on or about the 5th July, 1967 the petitioner received from the South African Company two purchase notes dated the 29th June, 1967 from which the petitioner came to know for the first time that the ultimate destination of the goods was Swaziland. Owing to an oversight, however, the petitioner did not have the registration of the agreement amended as regards the ultimate destination of the goods.

5. On the 25th August, 1967, the petitioner filed two shipping bills with the Customs, authorities in respect of the said shipments. In the shipping bills, the petitioner correctly stated the ultimate destination of the goods as Swaziland.

6. The Customs authorities, however, refused to pass the goods for shipment and ultimately issued, on or about the 30th September, 1967, a notice to show cause why the said goods should not be confiscated under Section 113(d) of the Customs Act, 1962 and why the petitioner should not be held liable to pay penalty under Section 114 thereof.

7. This notice to show cause issued bv the Assistant Collector of Customs for Export Department to the petitioner alleges in the opening paragraphs that, in the past, the petitioner had been exporting goods to South Africa by misdeclaring their destination in the relevant shipping bills. This allegation was made with reference to certain files which had been seized by the Customs authorities from the petitioner's custody. Thereafter, the notice to show cause proceeds to state as follows :--

'13. It, therefore, appears that M/s. Bird & Co. (P.) Ltd. have been exporting to South African and Southern Rhodesia misdeclaring the destination on the relative shipping bills and G. R. forms and the goods covered by the present shipping bill are also for export to South Africa.

14. Exports to South Africa are prohibited in terms of the Government of India Notification Customs No. 135 dated the 3rd October 1964, which has superseded the earlier Notification No. 2-C(6) 46-1 and 2-C(6)/46-2 dated the 17th July, 1946. This prohibition has been imposed in terms of Section 11 of the Customs Act, 1962.

15. In the context of this prohibition It appears that M/s. Bird & Co. (P.) Ltd. have filed these two shipping bills under reference in an attempt at exporting the goods to South Africa in contravention of the aforesaid prohibition and pursuant to that attempt have misdeclared the destination of the goods on the shipping bills and the relative G. R. Forms Ca. C 382640 and 382642 knowing the declaration to be false. Because of this misdeclaration an attempt at export in contravention of theprohibition under Section 11, Customs Act. 1962 the goods under reference have been rendered liable to confiscation under Section 113(d) ibid and M/s. Bird & Co. (P.) Ltd., liable to penal action under Section 114 ibid.'

8. It is this notice to show cause which is challenged before me in this application.

9. P. P. Ginwalla appearing on behalf of the petitioner draws my attention to the Notification No. G.S.R. 1422 (No-135-Cus/F. No. 2/3/63-Customs VIII-Cus-toms), dated the 3rd October, 1964 issued by the Government of India in the Ministry of Finance which is referred to in the notice to show cause. The material portion of the Notification is in the following terms :--

'In exercise of the powers conferred by Sub-section fi) of Section 11 of the Customs Act, 1962 (52 of 1962) and in supersession of the notifications of the Government of India in the late Department of Commerce No. 2-C(6)/46-l and No. 2-C(6)/46-2 (Both dated the 17th July, 1946). the Central Government, being satisfied that it is conducive to the interests of the general public so to do, hereby prohibits the exports to and imports from the Republic of South Africa of all goods.'

10. Then follows a list of goods to which the above prohibition does not apply.

11. Reference is also made in this connection to the earlier Notification dated the 17th July, 1946 which was superseded by the Notification dated the 3rd October, 1964. In the earlier Notification dated the 17th July, 1946, the material portion read as follows :--

'In exercise of the powers conferred by Section 19 of the Sea Customs Act, 1878 (VIII of 1878). the Central Government is pleased-

(a) .....

(b) to prohibit the taking by sea or by land out of British India of goods from whatever place arriving which are destined for any port or place in the Union of South Africa or in respect of which the Chief Customs Officer is satisfied that the goods although destined for a port or place outside the Union of South Africa are intended to be taken to the Union of South Africa.'

12. With reference to the contrast in the language between the earlier Notification and present Notification, Mr. Gin-walla submits that whereas under the earlier Notification the prohibition with regard to export not only extended to goods which were destined for South Africa but was also wide enough to cover those goods in respect of which the Chief Customs Officer is satisfied that although the goods were destined for a place out-side South Africa they were ultimately intended to be taken to South Africa. Whereas under the present Notification the prohibition only relates to export of goods to South Africa. Under the present Notification there is prohibition with regard to the export to the Republic of South Africa of all goods save for those mentioned in the Proviso. If the goods are exported to any place which is not in South Africa, the fact that they may ultimately find their way to the South Africa is irrelevant in the context of the present Notification dated the 3rd October, 1964 and does not amount to any contravention thereof. It is further submitted that even if the petitioner knew that some of the goods which are being exported to a place outside South Africa were ultimately to get into South Africa, that would not amount to a contravention of the prohibition contained in the Notification dated the 3rd October, 1964.

13. Coming to the facts of the present case Mr. Ginwalla submits with reference to the telex messages and communications annexed to the petition and the contract contained in the purchase notes that the destination of the goods in so far as the petitioner was concerned was Laurenco Marques in transit to Swaziland. It was not disputed by Mr. Kar appearing on behalf of the Customs authorities that both Laurenco Marques and Swaziland were outside South Africa. Consequently, it was submitted that on the face of the documents relating to the contract, the goods were destined for a place outside South Africa. Therefore, there has been no contravention of the Notification dated the 3rd October, 1964.

14. Mr. G. P. Kar appearing on behalf of the Customs Authorities drew my attention to Section 50 of the Customs Act, 1962 which is in the following terms :

'50. Entry of goods for exportation.--(1) The exporter of any goods shall make entry thereof by presenting to the proper officer in the case of goods to be exported in a vessel or aircraft, a shipping bill, and in the case of goods to be exported by land, a bill of export in the prescribed form.

(2) The exporter of any goods, while presenting a snipping bill or bill of export, shall at the foot thereof make and subscribe to a declaration as to the truth of its contents.'

According to Mr. Kar the petitioner has misdeclared the destination of the goods and consequently violated the provision of Section 50 of the Act.

15. I am unable to accept this contention of Mr. Kar. All that Section 50 of the Act requires is that an exporter should file a shipping bill and subscribe to a declaration at the foot thereof that the contents are true. This Section, inmy view, has nothing to do with the question of misdeclaration in a shipping bill for which there are other provisions in the Act. Further it is to be noted that, on the face of the notice to show cause, the petitioner has not been charged with any violation of Section 50 of the Act.

16. In my view, the contention of Mr. Ginwalla is well founded. The prohibition contained in the Notification dated the 3rd October. 1964 is only in respect of exports to South Africa. I do not see how on the basis of the documents annexed to the petition it can be said that the goods in the instant case were being exported to South Africa. Admittedly, both Lourenco Marques and Swaziland are outside South Africa. In view of the contrast between the language of the earlier Notification and the present Notification even if the petitioner knew that the goods were ultimately to find their way into South Africa, this cannot be held to be a contravention of the present Notification. Consequently, it must be held that even taking the allegations in the notice to be correct, they do not constitute any offence of contravention of the Notification dated the 3rd October, 1964. The impugned notice to show cause must be struck down on this ground.

17. This contention of Mr. Ginwalla, therefore, succeeds.

18. Mr. Ginwalla further submitted that the Notification dated the 3rd October, 1964 is invalid as being in contravention of Section 11 of the Customs Act. 1962. According to this contention, Section 11(1) of the Act authorises the Central Government to prohibit either absolutely or subject to such conditions as may be specified in the Notification, the import or export of goods of any 'specified description'. In other words it is not permissible to impose a blanket prohibition of all goods subject to certain . exceptions. It is not permissible to say what goods are not prohibited. The Notification must specify the goods that are prohibited.

19. Reliance was placed in this connection on a decision of the Bombay High Court in the case of Karl Ettlinger & Co. v. Chagandas & Co., reported in AIR 1915 Bom 232 as an authority for the proposition that such a Notification must specify the goods nominatim.

20. Lastly, it was argued by Mr. Ginwalla that the purposes specified in the Notification dated the 3rd October, 1964 do not come within any of the purposes indicated in Section 11(2) of the Act.

21. Having regard to my decision on the first question, I am not inclined to express any opinion on the merits of these contentions. I make it clear, however, that it will be open to the petitionerto have these questions adjudicated in an appropriate proceeding, if so advised.

22. In the result, this application succeeds and the Rule is made absolute. There will be a Writ in the nature of Mandamus directing the respondents to forthwith recall, cancel and withdraw the notice to show cause dated the 30th September, 1967 issued by the respondent No. 1 and a Writ in the nature of prohibition restraining the respondents from giving any effect to the said notice. The respondents would, however, be at liberty to proceed according to law.

23. There will be no order as to costs.


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