D.N. Sinha, J.
1. The facts in this case are shortly as follows: On the 25th October, 1958 one of the Customs officers at Dum Dum Airport, while examining a wooden case declared to contain rosogolla, achar, papar and dried vegetables under cover of Shipping Bill No. A. E. F. No. 761 dated 18-10-58 and consignment Note No. 085/SR 1082755 to be shipped to Hongkong per Swiss Air, detected Rs. 51,000/- in Indian Currency Notes of hundred rupees denomination concealed in a specially made cavity on the battens nailed to the inner sides of the case.
2. In the shipping bill, the consignor was shown to be one Ramghawan Singh, Karnani Mansions, Park Street, Calcutta, and the consignee was shown to be one Iswarlal, 41, Wyndh am Street, Hongkong.It was found from the shipping bill that the case in question was originally to be shipped per M/s Thai Airways Co., Ltd., but it was ultimately booked with the Swiss Air. Enquiries revealed that no person by the name of Kamghawan Singh ever lived or was living in Karnani Mansions at Park Street. The evidence shows that it was a fictitious name. Enquiries made of M/S. Thai Airways Co., Ltd., and Indian Airline Corporation revealed that during the Puju holidays an elderly person had been to their office with a wooden case on three days for booking the same. This same person had been to their office in connection with the booking of another case declared to contain images of Gods under cover of consignment note No. 085/SR 1082754. This man had signed the consignment note in the presence of the officers. A loader of M/s Thai Airways Co. Ltd. and the Traffic Assistant of the Indian Airline Corporation, stated that they would be able to identify the person. In fact, they identified Sri Bhagwandeo Tewari employed by M/s Agrawal Trading Corporation of 191, Harrison Road, Calcutta. Thereupon, the Customs Authorities took out a search warrant from the Chief Presidency Magistrate of Calcutta under Section 172 of the Sea Customs Act and the office of the petitioner firm was searched as also the residence of the partners, On scrutiny of the documents seized the following facts appeared: (1) On 22-10-58 Bhagwandeo Tewari had been to M/s Thai Airways Co. Ltd., with a case, for which he had to pay rickshaw, and Taxi fare and coolie charges, which were recorded in the books of the petitioner firm. (2) On 24-10-58 Bhagwandeo Tewari had been to the office of the India Airline Corporation and incurred similar expenses which were only recorded. (3) From the attendance register of the petitioner firm, it was found that Bhagwandeo Tewari was the cashier of the firm. In fact, he admitted his handwriting in the books of account. (4) On comparison of the specimen writing of Bhagwandeo Tewari with the signature (signed as Ram Chandra) on the consignment notes regarding No. 085/SR 1082754 and No. 085/SR 1082755, it was found that the specimen writings and the signatures were in the same hand. A typed authority letter dated 24-10-58 accompanying the said consignment notes compared with a letter written by the petitioner firm and duly signed by Giridharilal Gupta one of the partners, showed that they were typed on the same typing machine. (5) Enquiries revealed that the case, booked under consignment Note No. 085/SR 1082754, said to contain images of Gods was sent in the name of Radhey Shyam of 201, Mahatma Gandhi Road, Calcutta, but that no such person ever resided at the said place, and it was a fictitious name. (6) During the course of search of premises No. 11B Jatindra Mohan Avenue, a duplicate shipping bill No. A. E. F. 910 dated 25-10-58 was discovered, taken in the name of one Gopikrishna Tai of 11, Beadon Street, Calcutta, but enquiries revealted that no such person resides or ever resided at the said place. (7) It appeared from an account-slip seized during the search that besides the expenses incurred by Bhagwandeo Tewari in connection with the cases which he took to the Indian Airline Corporation and Thai Airways Co. Ltd. a sum of Rs. 127-73 np. was shown as expenditure against the words 'Hongkong Lagaya',the said sum being the exact freight paid for the case covered by the consignment Note No. 085/SR1082755 containing the currency notes.
3. On the 6th May, 1959 the Assistant Collector of Customs and Superintendent. Preventive Service, Customs House, Calcutta, the respondent No. 1 in this application, issued a show-cause notice upon the petitioner firm, stating all the above facts. It was further stated therein that the exportation of the Indian currency out of India was prohibited, except with the general or special permission of the Reserve Bank of India or the Central Government. Under Section 8(2) of the Foreign Exchange Regulation Act read with the Reserve Bank of India Notification No. FFRA-105/51-RB, dated 27th February, 1951 (as amended). No such permit or authority existed in connection with the exportation of the said Indian Currency of the value of Rs. 51,000/-and, therefore, an offence had been committed under Section 23 of the Foreign Exchange Regulation Act. The petitioner firm was given an opportunity of showing cause, otherwise it was stated that a prosecution would be lodged under Section 23(1) read with Section 8(2) of the Foreign Exchange Regulation Act. On the 7th April, 1959 a similar notice was issued upon Giridharilal Gupta, the petitioner No. 2 in the application, asking him to show cause why penal action should not be taken under Section 167(3), (8), (37) of the Sea Customs Act. He was asked to state in his written explanation whether he wished to be heard in person. It was further stated that if ho failed to submit a written explanation in time or did not appear before the Assistant Collector of Customs when the case would be fixed, for hearing, the case might be decided on the basis of evidence on record without any further notice. On the 13th April, 1959 the petitioner firm submitted a written explanation. It was stated therein that the petitioner firm consisted of two partners, Giridharilal Gupta and Puranmull Jain. The defence was that the petitioner firm had nothing to do with the consignment in question, and that Ramghawan Singh was not known to the firm. It was denied that the ease in question was despatched by the petitioner firm or that Bhagwandeo Tewari was deputed to book the same. It was stated that the firm has no knowledge that Bhagwandeo Tewari had despatched the present consignment or any other consignment containing images of Gods. It was stated that although the duplicate shipping bill in the name of Gopikrishna Jain was recovered from the custody of Sm. Bhagwati Devi, who was the wife of a cousin of Giridharilal Gupta, she was living separately and not at the residence of the partners of the petitioner firm, who, it is claimed, had no knowledge of any shipment of a case containing currency notes. It was stated in the explanation that Giridharilal Gupta and Puranmal Jain were the partners and not Dangarmal Sarogi as mentioned in the show cause notice. The same explanation was given by Giridharilal Gupta in his individual capacity. On the 6th May, 1959 a corrigendum was issued to the show cause notice dated 7th April, 1959. The names of the partners were corrected. It was further stated that both the petitioner firm and the two partners thereof had committed an offence punishable under Section 167(3) and (8) and (37) of the Sen Customs Act read with Section 23-A of the ForeignExchange Regulation Act, 1947 and they were to explain within seven days why a penal action should not be taken against them under Section 107(3), (8) and (37) of the Sea Customs Act. It was further stated that if a written explanation was not submitted with documentary evidence in support thereof within seven days, the case will be decided upon the basis of the evidence already on record, without further; notice. In the explanation given to the show cause-notice, a request was made for the inspection of certain documents and inspection was given. This was recorded in a letter dated 19th May, 1959 written, jointly by the petitioner firm and Giridharilal Gupta. This is the only explanation on record and it simply states that they had no knowledge of the offending parcel and hope was expressed that the matter would be dropped. Beyond this, there was no explanation given, no personal hearing asked for, and nobody appeared when the matter was decided. On the 30-5-1959 the matter was disposed of by an order made by the Additional Collector of Customs, Calcutta, the respondent No. 2 in this application. A copy of the order is annexure 'E' to the petition. It was held that upon the evidence on record, it had been established that the offence had been committed and that the offending Indian currency should be confiscated under Section 167(8) and (37) of the Sea Customs Act without any option, and a personal penalty imposed of Rs. 1000/- under Section 167(3) of the Sea Customs Act, a personal penalty of Rs. 1000/- under Section 167(37) of the Sea Customs Act, and a personal penalty of Rs. 51,000/-under Section 167(8) of the Sea Customs Act read with Section 23(A) of the Foreign Exchange Regulation Act. On the 27th June, 1959 the petitioners prayed for an extension of time to deposit the- amount, and, thereafter, this application was made in July 1959 and the Rule issued. A second. Rule was issued on the 28th August, 1959 which has been numbered as Matter No. 115 of 1959 and relates to the release of five cases of art silk and piecegoods which have been seized and/or detained by the Customs Authorities under Section 192 of the Sea Customs Act, in execution of the amount due from the petitioner under the order dated 30th May, 1959.
4. A criminal prosecution has been lodged against the petitioner, which has so far been stayed by an order of this Court. A preliminary objection has been taken in this case to the effect that no appeal was preferred against the order and the petitioners can only succeed if they show that there is any defect in jurisdiction or error of law on the face o proceedings. I do not. however propose to decide the case merely upon this preliminary point.
5. The first point taken by Mr. Chowdhury is that the Customs Authorities could not in the same show-cause notice, proceed against the petitioners under Section 167(3), (8) and (37) of the Sea Customs Act. His argument is that these, three items deal with offences which are identical and, therefore, nobody could be punished thrice for the same offence. Alternatively, he says that at least they overlap and, therefore, it is not possible to punish anybody under all the three items conjointly. In my opinion, there is no substance in this argument. Section 167(3), inter alia comes into operation if any person knowingly keep or conceal or knowinglypermit or procure to be kept or concealed, any goods intended to be shipped, contrary to the provisions of the Sea Customs Act. If these facts are established, the offence is committed and such person shall be liable to penalty not exceeding one thousand rupees. Section 167(8) comes into operation inter alia if any goods, the exportation of which is for the time being prohibited or restricted, is attempted to be exported, or if any such goods be found in any package produced to any officer of Customs not declared to contain such goods. Where this offence is committed, then two kinds of punishment have been prescribed. Firstly, there is a punishment in rem, namely that the goods shall be liable to confiscation. The scond punishment is in personam and it is prescribed that 'any person concerned in such offence' shall be liable to a penalty not exceeding three times the value of the goods or not exceeding one thousand rupees. These two punishments are not alternative but may be imposed together. Section 167(37) comes into operation, if it be found that goods have been brought, to be passed through a custom-house for exportation, but that the contents of any package containing the goods have been wrongly described in the bill or application as regards the denomination or character of such goods. Where any such offence is committed such package together with the whole of the goods shall be liable to confiscation and every person concerned in any such offence shall be liable to penalty not exceeding one thousand rupees. In this particular case, it will be remembered that penalties have been imposed on all the three headings. In the case of Section 167(3) and (37) there has been imposed a penalty of one thousand rupees, on each head. With respect to Section 167(8), the currency notes have been confiscated and a personal penalty has been imposed to the extent of Rs. 51,000/-, being the value of the currency notes sought to be exported illegally. It would be observed, that the offences which have been enumerated under Section 167 (3), (8), (37) are not identical. Section 167(3) does not relate to any particular section of the Sea Customs Act but is a general provision. That would apply because it has been held that the petitioners knowingly concealed the goods intended to be shipped, contrary to the provisions of the Act. The essence of the offence would be the deliberate act of concealment. (Sic) (As regards Section 167(8) (?)) Reference has been made in this connection to Sections 18 and 19 of the Sea Customs Act. Section 18 prohibits certain goods from being exported or imported. Section 19 empowers the Central Government to issue notifications prohibiting or restricting the export and import of any goods across any custom frontier. By Section 23(A) of the Foreign Exchange Regulation Act, 1947 restrictions imposed by Section 8, including the import and export of Indian currency, is to be deemed to have been imposed under Section 19 of the Sea Customs Act. Thus the essence of the offence is the attempt made to export something which is for the time being prohibited by law. Coming to Section 167(37) we find that the offence relates to Sections 86 and 137 of the Sea Customs Act.; Section 86 provides how a bill of entry is to be drawn up. Section 137 prescribes how a bill of goods should be prepared. So far as this case is concerned, the essence of the offence would be the false description in the relative documents by omitting to mention anything about the export of currency and merely mentioning Rassogolla, Achar etc. It is clear to me, therefore, that the ingredients of the offences mentioned in Section 167(3), (8) and (37) are not the same, although in some minor respects there might be overlapping. It is, therefore, not a correct proposition of law to say that the Customs authorities cannot impose different sets of penalty for these distinct offences at one and the same time. The illegal exportation of currency consists of an integrated series of acts just as much as the legal exportation would be Some facts are bound to be common in the commission of the different offences but that does not affect the jurisdiction to impose the several penalties. It does not mean that the Customs authorities are not entitled to come to the conclusion that more than one offence has been committed, nor are they powerless to impose more than one penalty if they find that more than one offence has, in fact, been committed. The next point urged is that the provision of Section 167(8) does not apply to the facts of this case, because currency is not 'goods'. It is true that Section 167(8) sneaks about the importation and exportation of 'goods'. The question is whether current coins or currency could be appropriately described as 'goods'. A short answer to this point is Section 23-A of the Foreign Exchange Regulation Act, 1947. It runs as follows :
'23-A Application of Sea Customs Act, 1878 : Without prejudice to the provisions 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 (8 of 1878); and all the provisions of that Act shall have effect accordingly, except that Section 183 thereof shall have effect as if for the word 'shall' therein the word 'may' were substituted.'
6. Sub-section (2) of Section 8 provides that no person shall, except with the general or special permission of the Reserve Bank, or the written permission of a person authorised in this behalf by the Reserve Bank, take or send out of India inter alia any Indian currency. Therefore, as soon as there is an attempt to export Indian Currency outside India, without the necessary permission or authority, the offence, although being in violation of the Foreign Exchange Regulation Act, is to be deemed to have been a violation of the provisions of Section 19 of the Sea Customs Act, and would, therefore, attract Section 167(8) of the said Act. It is, therefore, no good saying that currency is not 'goods'. It will be deemed to be 'goods' and for the purpose of Section 167(8), currency must be dealt with on the same footing as any other 'goods'.
7. The next point taken is that wider Section 167(8), the maximum penalty is rupees one thousand. It is argued that in this ease a sum of Rs. 51,000/-has been imposed as penalty and is, therefore, an invalid order. The point arises in this manner : The penalty that can be imposed under Section 167(8) is as follows :
'Such goods shall be liable to confiscation; any person concerned in any such offence shall beliable to a penalty not exceeding three times the value of the goods, and not exceeding one thousand rupees.'
The currency notes of the value of Rs. 51,000/-have been confiscated and there is no objection, because nobody claims it. The objection is with regard to the penalty. So far as the penalty is concerned, the wordings quoted above will show that there is an option given, to impose a penalty not exceeding three times the value of the goods, or in the alternative a sum not exceeding one thousand rupees. What is argued is that in any event, -the amount -cannot exceed Rs. 1,000/-. In this particular ease, the value of the goods is Rs. 51,000/-and, therefore, prima facie a penalty could have been imposed upto thrice the amount namely RS. 1,53,000/-. But a penalty of Rs. 51,000/- has been imposed. It is, however, argued that the amount could not exceed Rs. 1000/-. For this purpose, several authorities have been cited, including decisions of the Supreme Court. The first case is Maqbool Hussain v. State of Bombay, : 1983ECR1598D(SC) . The facts were as follows: The appellant, who was an Indian citizen, arrived at the Santa Cruz Airport from Jeddah. On landing, he did not declare that he had brought any gold with him, but on search an amount of gold was discovered. The Customs authorities thereupon took action under Section 167(8) of the Sea Customs Act, and confiscated the gold. A complaint was then filed in the court of the Chief Presidency Magistrate, Bombay charging him with having committed an offence under the Foreign Exchange Regulation Act. The appellant thereupon filed a petition before the Hign Court of Bombay that this was in violation of Article 50(2) of the Constitution, because he was being put to double jeopardy. It was held that Article 20(2) did not apply, because the confiscation of the goods under Section 167(8) was not a 'prosecution'. Incidentally Bhagwati J. made this remark :
'Even though the Customs officers are vested with the powers of adjudging confiscation, increased rates of duty or penalty, the highest penalty which can be inflicted is Rs. 1000/-.'
8. The next decision of the Supreme Court cited is F.N. Roy v. Collector of Customs, Calcutta, : 1983ECR1667D(SC) . In that case, the applicant imported Zip-Chains from Japan of the value of Rs. 11,051/4/-. In respect of the goods imported, a show cause notice was served on the applicant, stating that there was no valid licence covering the goods and that the goods would be confiscated and action taken against the petitioner under Section 167(8). Ultimately, the Collector of Customs made an order confiscating the goods and imposing a penalty of Rs. 1000/-. Thereupon, an application was made to the Supreme Court and one of the points taken was that portions of Section 3(2) of the Imports and Exports (Control) Act, 1947 offended Article 14 of the Constitution. Sarkar, J, said as follows :
'Another similar argument was that Section 167, item 8, of the Sea Customs Act itself offended Article 14 in that it left to the uncontrolled discretion of the. Customs authorities to decide the amount of the penalty to be imposed. Section makes it clear that the maximum penalty that might be imposedunder it is Rs. 1000/-. The discretion that the section gives must be exercised within the limits so fixed.'
9. It is, therefore, argued that the Supreme Court has clearly laid down that the maximum penalty that can be imposed under Section 167(8) is Rs. 1000/- and no more. Before I express my opinion it would be necessary to notice a few more decisions. This point specifically came to be considered by a Division Bench of the Bombay High Court in Mohandas Ishardas v. A. N. Sattanathan, : AIR1955Bom113 . The Supreme Court decision of Maqbool Hussain, : 1983ECR1598D(SC) (Supra) was cited as establishing the proposition that under Section 167(8) the amount of penalty was limited to Rs. 1000/-. Chagla CJ. pointed out that the expression of opinion by Bhagwati J., was not even an 'obiter dictum', because no question ever arose in that case with regard to the interpretation, of Section 167(8), so far as penalty was concerned, because no penalty at all was imposed upon Maqbool Hussain, the only order being one of confiscation. All that was decided was the applicability of Article 20(2). Chagle CJ. pointed out that the court cannot read in item 8 words to this effect:
'Shall be liable to a penalty not exceeding three times the value of the goods or not exceeding Rs. 1000/- whichever is less.'
According to the plain construction of this provision, the Legislature has conferred upon the Customs Officer an option, when exercising his power of imposing a penalty. It confers jurisdiction upon the appropriate authority to impose a fine, which may be regulated by the value of the goods, in which case it must not exceed three times its value thereof, or it may be regulated by a liquidated amount, in which case it must not exceed Rs. 1000/-. Another Division Bench of the Bombay High Court has, however, come to a contrary finding. It is an unreported decision in Appeal No. 39 of 1958 M.G. Abroi v. Hamid Sultan. It was held by Chainani CJ. that a fine exceeding Rs. 1000/- could not be imposed under Section 167(8). The learned Judge relied on the case of Maqbool Hussain, : 1983ECR1598D(SC) (Supra) and F. N. Roy, : 1983ECR1667D(SC) (Supra) and also a Supreme Court decision, Babulal Amthalal v. Collector of Customs, Calcutta, : 1983ECR1657D(SC) . In that case, the petitioner carried on business as a broker in diamonds and precious stones. There was a search in his premises, and certain pieces of diamonds were discovered. He was asked to produce evidence showing that the goods were not smuggled goods but were legally imported on. payment of duty, and also why action should not be taken under Sections 167(8) and 167(39) of the Sea Customs Act. After the explanation was given, the Collector of Customs held that the petitioner had failed to discharge the onus placed upon him by Section 178(A) of the Sea Customs Act. Under this section, it is provided that where certain, goods were seized under the Sea Customs Act, in the reasonable belief that they were smuggled goods, the burden of proving that they were not smuggled goods shall be on the person from whose possession the goods, were seized. It was urged that this section was viotative of the principle of equal protection of the laws guaranteed under Article 14 of the Constitution. It was held that the provision was not discriminative in character and did not violate Article 14, and was valid. Menon, J., incidentally said as follows:
'We are in this case concerned with entries Nos. 8 and 39. The penalty of confiscation is provided in the third column of Entry No. 8, if any goods, the importation or exportation of which is prohibited or restricted, are imported contrary to such prohibition or restriction. It lays down that in addition to the confiscation of goods, the persons concerned shall be liable to a penalty not exceeding three times the value of the goods, or not exceeding one thousand rupees. This Court has held that the minimum is the alternative; (See : 1983ECR1598D(SC) (Supra)).'
10. Chainani CJ. held that the observation of Bhagwati J., in Maqbool Hussain's case, : 1983ECR1598D(SC) (Supra) having been approved by the Supreme Court in the above case, it can no longer be said to be only a casual observation, but should be considered as an 'obiter dictum'' which is binding on the High Courts. It was, therefore, held that a penalty exceeding Rs. 1000/- could not be imposed under Section 167(8). Coming to this Court, I find that Mukharji J., in Palriwala Bros, Ltd. v. Collector of Customs, : AIR1958Cal232 has considered the very same point. He states as follows :
'The third objection is that the fine of Rs. 22,000/- was beyond the statutory limit and beyond the capacity of the person who imposed it. It is alleged that under Section 167(8) of the Sea Customs Act no fine exceeding Rs. 1000/- could be imposed. The learned counsel for the applicant relied on the observation made by the Supreme Court in : 1983ECR1667D(SC) (supra) at page 651 where it is said that the maximum penalty that might be imposed under Section 167(8) is Rs. 1000/-and also on a previous decision of the Supreme Court in : 1983ECR1598D(SC) (Supra) where a similat observation was made. In the recent Supreme Court decision in 1957 SCR 1110: ((S) AIR 1937 SC 877) (Supra) reference has been made to Maqbool Hussain's case, : 1983ECR1598D(SC) (supra) but those cases did not, however, in my view, go into the question of maximum limit and actually decide the point. Rajamannar, C, J. in Collector of Customs v. A. H. A. Rahiman, : AIR1957Mad496 has discussed this question and held that Rs. 1000/- is not a maximum limit. The language of the statute is clear.....'
The point came to be considered by me in Mohonlal Sharma v. Jasjit Singh, Matter No. 80 of 1957 judgment dated 21-2-58, unreported. Before me also, reliance was placed on the Supreme Court cases mentioned above. I held that the learned Judges of the Supreme Court had not decided the case from the point of view that we are considering, and that they were only dealing with the money penalty, and were not considering the penalty so far as the value of the goods was concerned.
11. The position, therefore, is that the Bombay views are conflicting, there being two Division Bench judgments, holding different views. The Madras and the Calcutta view supports the viewexpressed by Chagla C. J. Of course, if the Supreme Court decision is clear, all High Courts would be bound. In my opinion, however, the Supreme Court decision has not considered the aspect of the question we are called upon to determine and I am, therefore, still of the opinion that Section 167(8) provides for two kinds of penalties, one is related to the value of the goods and the maximum that can be imposed is three times the value of the goods. Alternatively, however, there can be imposed a money penalty not exceeding Rs. 1000/- which has nothing to do with the value of the goods. Therefore, this point fails.
12. These are the main arguments advanced on behalf of the petitioners. Another minor point was taken, which I shall now proceed to consider. It is said that the show-cause notice in this case was issued by the Assistant Collector of Customs and Superintendent, Preventive Service, Customs House, Calcutta. By the said notice, explanations were called for and the petitioners were asked to appear before the Assistant Collector of Customs etc. It is pointed out that, in fact, no hearing took place and no evidence was taken, but the order was made, not by the Assistant Collector of Customs but by the Additional Collector of Customs, the respondent No. 2. This, it is said, renders the order illegal. It will be recollected that in the show-cause notice that was issued by the Assistant Collector of Customs on the 7th April, 1959 and on the 6th May, 1959 it was pointed out that if the petitioners failed to submit a written explanation, or did not appear when the case would be fixed for hearing, the case would be decided on the basis of evidence already on record. The petitioners were clearly asked to state in their, written explanation as to whether they wished to be heard in person. None of the petitioners ever made a demand to be heard in person. Therefore, there was no question of fixing a date for hearing. If there was to be no hearing and no evidence adduced on behalf of the petitioners, any officer who was authorised to pass an order could deal with the matter. If of, course, the petitioners asked for a personal hearing and then there was a hearing in the usual way by calling evidence and hearing arguments, the only person that could have conducted it would be the person serving the notice and the order would have to be made by the authority hearing the case. Here, however, a determination had to be made on the documents or evidence on record. The Additional Collector is a person duly authorised to hear and decide such cases. That appears from the schedule annexed to paragraph 2 Chapter II of the Indian Sea Customs Manual as amended by the Notification No. 36 Cus dated 2nd June, 1956 being a notification under Section 6 of the Sea Customs Act. In my opinion, therefore, the Additional Collector of Customs was entitled to consider the matter and to pass orders in the facts and circumstances of this case.
13. These are the points taken in this casewhich all fail. The result is that this applicationmust be dismissed. The Rule is discharged. Interimorders, if any, are vacated. There will be no orderas to costs.