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Gordhandas Jerambhai and ors. Vs. the Assistant Collector of Customs and ors. - Court Judgment

LegalCrystal Citation
SubjectFERA
CourtKolkata High Court
Decided On
Case NumberMatter No. 633 of 1967
Judge
Reported inAIR1970Cal204
ActsForeign Exchange Regulation Act, 1947 - Section 12(1)
AppellantGordhandas Jerambhai and ors.
RespondentThe Assistant Collector of Customs and ors.
Respondent AdvocateG.P. Kar, Adv.
DispositionPetition allowed
Cases ReferredLaxminarayan Ramniwas v. Collector of Customs Matter No.
Excerpt:
- .....to an unreported decision of this court in the case of laxminarayan ramniwas v. collector of customs matter no. 169 of 1959 = (since reported in : air1961cal616 ). in that case sinha, j. (as he then was) observed as follows:-- 'shortly put, mr. deb's argument is that his clients had a valid import license for 49.817 tons which had been imported ex. ss. 'eastern maid' and assuming that the value had been misdeclared, it could not come within the purview of section 167 (8), although it might come under section 167 (37) (c) i.e. misstatement in the bill of entry in regard to value. in other words, he says that under no circumstances could the goods be said to have been imported in contravention of law, because there was valid license. in my opinion, although the matter is an arguable.....
Judgment:
ORDER

T.K. Basu, J.

1. In this case the petitioner challenges three notices dated the 25th October, 1967 issued on petitioners Nos. 1, 2 and 3 respectively by the Assistant Collector of Customs for Export Department, Customs House, Calcutta, asking the petitioner to show cause why certain bales of Hessian and Tarpaulin cloth meant for export to Czechoslovakia should not be confiscated under the provisions of Section 113(d) of the Customs Act, 1962. The substance of the allegations in the notice to show cause is that the petitioner had in the declaration filed under the provisions of Section 12 (1) of the Foreign Exchange Regulation Act, 1947 (hereinafter referred to as the Act) shown as the destination of the goods various countries in Eastern Europe where the goods to be exported were, in fact, meant for different countries in Western Europe. It is alleged that the petitioner has thereby contravened the provisions of Section 12 (1) of the Act read with Sections 23-A and 23-B thereof.

2. Reliance is placed on behalf of the petitioner on an unreported decision of the Supreme Court in the case of Union of India v. Sreeram Durgaprosad (P)Ltd. In which the majority judgment was delivered by Hegde, J. on behalf of the Supreme Court on 19-11-1968. It was held in that case that the submission of a declaration in terms of Section 12 (1) of the Act was sufficient compliance with the provisions thereof. If there are incorrect particulars with regard to the full export value of the goods or other details as shown in the declaration, the exporter might be liable for action under other provisions of the Act or the Rules made thereunder. But if, in fact, the declaration has been submitted, it cannot be held that there has been any contravention of Section 12 (1) of the Act. It was held in that case, on an interpretation of the scheme of the Act that, in so far as the Customs authorities are concerned, all they have to see is that no goods are exported without furnishing the declaration prescribed in Section 12 (1) of the Act. Once that stage is passed, the rest of the matter is left in the hands of the Reserve Bank and the Director of Enforcement.

3. Admittedly, a declaration under Section 12 (1) of the Act has been submitted in the present case. In the circumstances, it must be held that the petitioner cannot be charged with any violation of the provisions of Section 12 (1) of the Act.

4. Mr. G. P. Kar appearing on behalf of the respondents contended that the application is premature and that I should not interfere at this stage. In support of this argument, he relied on an unreported decision of B. C. Mitra, J., D/- 31-7-1967 in the case of the Orissa Mineral Development Co. Ltd. v. Assistant Collector of Customs. Matter No. 455 of 1967 (Cal). In that case it was held that if the Customs authorities had, in the facts of a case, jurisdiction to issue the notice to show cause, the High Court should not interfere before the adjudication is completed by the Customs authorities.

5. In my view, this proposition of law cannot be disputed. It has, however, been laid down by the Supreme Court in the case of East India Commercial Co. Ltd. Calcutta v. Collector of Customs, Calcutta, reported in : 1983(13)ELT1342(SC) that where an inferior Tribunal is continuing with a proceeding which is without jurisdiction, a Writ of Prohibition will lie restraining the Tribunal from so continuing to proceed. In paragraph 27 of the Report at page 1903 Subba Rao, J. observed as follows:--

'The respondent proposed to take action under Section 167 (8) of the Sea Customs Act, read with Section 3 (2) of the Act. It cannot be denied that the proceedings under the said section are quasi-judicial in nature. Whether a statute provides for a notice or not, it is Incumbent upon the respondent to issue notice to the appellants disclosing the circumstances under which proceedings aresought to be initiated against them. Any proceedings taken without such notice would be against the principles of natural justice. In the present case, in our view, the respondent rightly issued such a notice wherein specific acts constituting contravention of the provisions of the Act for which action was to be initiated were clearly mentioned. Assuming that a notice could be laconic, in the present case it was a speaking one clearly specifying the alleged act of contravention. If on a reading of the said notice, it is manifest that on the assumption that the facts alleged or allegations made therein were true, none of the conditions laid down in the specified sections was contravened, the respondent would have no jurisdiction to initiate proceedings pursuant to that notice. To state it differently, if on a true construction of the provisions of the said two sections the respondent has no jurisdiction to initiate proceedings or make an inquiry under the said sections in respect of certain acts alleged to have been done by the appellants, the respondent can certainly be prohibited from proceeding with the same'.

6. Mr. Kar in this connection also drew my attention to an unreported decision of this Court in the case of Laxminarayan Ramniwas v. Collector of Customs Matter No. 169 of 1959 = (Since Reported in : AIR1961Cal616 ). In that case Sinha, J. (as he then was) observed as follows:--

'Shortly put, Mr. Deb's argument is that his clients had a valid import license for 49.817 tons which had been imported ex. ss. 'Eastern Maid' and assuming that the value had been misdeclared, it could not come within the purview of Section 167 (8), although it might come under Section 167 (37) (c) i.e. misstatement in the bill of entry in regard to value. In other words, he says that under no circumstances could the goods be said to have been imported in contravention of law, because there was valid license. In my opinion, although the matter is an arguable one, it is by no means free from doubt. It is true that the import license was for a very much larger quantity that the goods imported in this particular consignment. But the clearance permit that was taken out showed the weight of the goods and its value. If it is now found that the actual goods are not as described but are goods worth much more, there Is ground for an investigation, to find out whether the goods that have been imported are in accordance with the license. I am unable to hold that where a permission is given to import a certain quantity of goods of a certain value, it necessarily permits the importation of the goods of the same weight for a value, much in excess. Upon this point, it is not necessary for me to come to a final conclusion. The Customs Authorities, and the Assistant Collector of Customs who has issued this show-cause notice, has jurisdiction to deal with this point and decide it. He has merely issued a show-cause notice, and asked for an explanation. The petitioner may take the objections which he has taken before me, and such objections will be decided according to law. I do not see how it can be said that the Assistant Collector of Customs has no jurisdiction to deal with the matter. It is true that if a judicial tribunal attempts to deal with a matter which it has no jurisdiction to deal with, then the writ Court may intervene. But that signifies an initial lack of jurisdiction, which must be patent on the face of the proceedings. It would be absurd to hold that immediately upon the tribunal issuing a show-cause notice the importer can come to this Court, to have the merits of the case investigated. In that event, this Court will have to go into the merits of each and every show-cause notice issued by the customs authorities. Mr. Deb, however, argues that upon the facts stated in the show-cause notice itself, it appears that the conclusion must inevitably be that no offence has been committed under Section 167 (8). Firstly I do not at present agree with that proposition, for reasons stated above. Secondly, that does not mean that the Assistant Collector of Customs has no jurisdiction to decide the point.'

7. It will appear from the above observations that, since it was held in the facts of that case that the Customs authorities had jurisdiction to decide the question involved, the High Court did not choose to interfere at the stage of the issue of a notice to show cause. As I have indicated above, this proposition of law cannot be disputed.

8. In the facts of the present case, however, even if all the allegations in the notice to show cause be assumed to be true and correct, they do not disclose any contravention of Section 12 (1) of the Act in view of the decision of the Supreme Court mentioned above. In that view of the matter, it must be held on the principles enunciated by the Supreme Court in East India Commercial Co's case, : 1983(13)ELT1342(SC) that the notice in this case is entirely without jurisdiction and the respondents should be restrained by a Writ of Prohibition from continuing the proceedings on the basis of the said notice. The contentions of Mr. Kar on this point must, therefore, be rejected.

9. In the result, this application must succeed and the Rule must be made absolute. There will be a writ in the nature of Mandamus directing the respondents to recall, cancel and withdraw the three notices dated the 25th October, 1967 and a Writ in the nature of Prohibition restraining the respondents from giving any effect to or taking any steps pursuant tothe said three notices. The respondents would however, be at liberty to proceed according to law.

10. There will be no order as to costs.


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