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Hoare Miller and Co. Ltd. Vs. the Assistant Collector of Customs and ors. - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtKolkata High Court
Decided On
Case NumberMatter No. 677 of 1967
Judge
Reported inAIR1975Cal440
ActsImports and Exports (Control) Act, 1947 - Section 3, 3(1) and 3(2); ;Customs Act, 1962 - Section 11, 11(1) and 11(2)
AppellantHoare Miller and Co. Ltd.
RespondentThe Assistant Collector of Customs and ors.
Cases Referred and Ladore v. Bennet
Excerpt:
- .....the powers conferred by section 3 of the imports and exports (control) act, 1947 (18 of 1947) the central government hereby prohibits the import and export of all goods whether directly or indirectly, into or from any port or place in india, from or to any place in rhodesia. no. ipc (genl. 44)/65p. sabanayagam,chief controller of im-ports & exports.'' 3. in this application under article 226 of the constitution the petitioner has challenged the said show cause notice. for the purpose of this application the petitioner has confined the challenge to three grounds. it was contended, firstly, that the prohibition of export was by the controller and not by the central government. it was contended that under the imports and exports (control) act, 1947 it was the central government which was.....
Judgment:
ORDER

Sabyasachi Mukharji, J.

1. In this application under Article 226 of the Constitution Messrs. Hoare Miller & Co challenges the notice dated 5th October, 1967 issued by the Assistant Collector of Customs to the petitioner to show cause why the goods covered by the three shipping bills mentioned in the said notice should not be confiscated under Section 113(d) of the Customs Act, 1962 and why penal action should not be taken against the petitioner under Section 114 of the Customs Act, 1962. After setting out the facts of those three shipping bills the notice stated, inter alia, as follows:--

'3. The facts detailed in para. 2 tend to show that the contracts in respect of the subject Roods have been entered into between Messrs. Union Agencies (Distributors) Pvt. Ltd. Rhodesia and the exporters. The name of their Zambia Associates Messrs Factors Zambia Ltd., had been utilised as a cover and Messrs. J. N. Barnett & Co. Beirs as their Agent for diversion of the goods to Rhodesia.

Exports to Rhodesia are prohibited in terms of the Government of India order No. 9/65 dated 17-11-65 issued under Section 3 of the imports & Exports (Control) Act. 1947. As it appears that Messrs. Hoare Miller & Co. Ltd., have filed the shipping bills under reference in an attempt at exporting the goods to Rhodesia in contravention of the aforesaid prohibition, the goods under reference appear to be liable to confiscation under Section 113(d) of Customs Act and Messrs. Hoare Miller & Co. Ltd. is liable to penal action under Section 114 ibid, for attempting to contravene Section 11, Customs Act read with Sec. 3 Imports & Exports (Control) Act, 1947.

Messrs. Hoare Mills & Co. Ltd. are hereby directed to explain in writing and to show cause within a week hereof why the goods should not be confiscated under Section 113(d), Customs Act. 1962 and why penal action should not be taken against them under Section 114, Customs Act, 1962. They should also produce documentary evidence if any in support of their explanation. They may also inform this office in writing if they would like to avail of any personal hearing in this matter.

If no reply is received within the stipulated time, the case will be adjudicated on the basis of evidence on record without any further reference to them.

This is without prejudice to any other action that may be taken under any other law for the time being in force in India.

They may take inspection of the documents and copies thereof by prior appointment with the undersigned.'

2. In effect, the notice stated that the goods covered by the shipping bills were indirectly meant for Rhodesia export to which country was prohibited and as such the petitioner has contravened the provisions of law. In this connection, it is relevant to refer to the Notification of the Ministry of Commerce prohibiting export of goods to Rhodesia. The said notification was to the following effect:--

'S. O. 3613.-- In exercise of the powers conferred by Section 3 of the Imports and Exports (Control) Act, 1947 (18 of 1947) the Central Government hereby prohibits the import and export of all goods whether directly or indirectly, into or from any port or place in India, from or to any place in Rhodesia. No. IPC (Genl. 44)/65P. Sabanayagam,Chief Controller of Im-ports & Exports.''

3. In this application under Article 226 of the Constitution the petitioner has challenged the said show cause notice. For the purpose of this application the petitioner has confined the challenge to three grounds. It was contended, firstly, that the prohibition of export was by the Controller and not by the Central Government. It was contended that under the Imports and Exports (Control) Act, 1947 it was the Central Government which was competent to impose any prohibition and not the Controller. Secondly, it was urged that there was no juirsdiction under Section 3 of the imports and Exports (Control) Act, 1947 to restrict export indirectly. It was submitted that such a restriction amounted to vague restriction. It was, thirdly, urged that the order in question was not valid inasmuch as there was no specification of the goods intended to be prohibited, I will examine the validity of the each one of the aforesaid three contentions. In this connection, it may be relevant first to refer to the provisions of the Imports and Exports (Control) Act, 1947. Section 3 of the said Act provides as follows :--

'3. Powers to prohibit or restrict imports and exports.-- (1) The Central Government may, by order published in the Official Gazette, make provisions for prohibiting, restricting or otherwise control-line, in all cases, or in specified classes of cases and subject to such exceptions, if any, as may be made by or under the order;

(a) the import, export, carriage coastwise or shipment as ships, stores of goods of any specified description;

(b) the bringing into any port or place in India of goods of any specified description intended to be taken out of India without being removed from the ship or conveyance in which they are being carried.

(2) All goods to which any order under Sub-section (1) applies shall be deemed to be goods of which the import or export has been prohibited under Section 11 of the Customs Act, 1962 (52 of 1962) and all the prohibitions of that Act shall have effect accordingly.

(3) Notwithstanding anything contained in the aforesaid Act, the Central Government may, by order published in the Official Gazette, prohibit, restrict or impose conditions on the clearance, whether for home consumption or for shipment abroad, of any goods or class of goods imported into India.'

4. The first contention, therefore, was as mentioned before the Central Government was authorised to impose prohibition, if any, and the prohibition in this case was not by the Central Government. It was contended that under the Imports and Exports (Control) Act, 1947 the Chief Controller being himself an authority created by the Act, could not himself exercise the powers under the Imports and Exports (Control) Act, 1947. In this connection reference was made to the provisions of clause 6 of the Imports (Control) Order, 1955 and clause 8 of the Exports (Control) Order, 1968. On behalf of the respondents learned counsel however contended that it was wrong to contend that the Chief Controller had made the impugned order, it was submitted that the order in question had been made by the Central Government and the said order had been merely authenticated by the Chief Controller of Imports and Exports. In this connection reliance was placed on the decision of this court in the case of C. T. A. Filial v. H. P. Lohia, : AIR1957Cal83 . There it was held that under the Imports and Exports (Control) Act (1947), a Joint Secretary or Deputy Secretary and also assistant and under secretaries were entitled to authenticate the order of the Government and there was no reason to think that the orders authenticated by them were not orders by the Government. Reliance was also placed on Article 77 of the Constitution. My attention was also drawn on behalf of the respondents to the Authentication (Orders and Other Instruments) Amendment Rules. 1965 which amended the Authentication (Orders and Other Instruments) Rules, 1958. The relevant provisions of Authentication 1958 Rules provided, inter alia, as follows:--

'(2) Orders and other instruments made and executed in the name of the President shall be authenticated............'

5. In 1965 the Amendment Rules provided as follows:

'In Rule 2 of the Authentication (Order & Other Instruments) Rules, 1958.

(i) in clause (,aa) the word 'or' shall be added to the end-

(ii) After clause (aa) the following clause shall be inserted namely:

(aa) (sic) in the case of orders and other instruments relating to the office of the Chief Controller of Imports and Exports, by the Chief Controller of Imports and Exports.'

It was, therefore, contended on behalf of the respondents that by virtue of the said Authentication (Order and Other Instruments) Rules, 1958 as amended in 1965, the impugned order which was signed by the Chief Controller of Imports and Exports should be deemed to have been passed by the Central Government. In view of the provisions of the General Clauses Act and in view of the said amended Rules I would have been inclined to accept this contention on behalf of the respondents and to hold that the impugned order was really passed by the Central Gevrnment and was properly authenticated by the Chief Controller of Imports and Exports. The controversy is not whether the order was properly authenticated but whether the Chief Controller was duly authorised to make the order on behalf of the Central Government. But unfortunately on behalf of the respondents no documents had been produced before me showing the authority of the Chief Controller. My attention was drawn to a decision of the Supreme Court in the case of E. G. Bar-say v. State of Bombay, : 1961CriLJ828 and counsel drew my attention to the observations of the Supreme Court in paragraphs 25 and 26 of the said judgment. There the Supreme Court upheld the order as there was evidence that the order made by the Deputy Secretary was on behalf of the Central Government in exercise of the powers conferred on him under the Rules. But the Supreme Court observed in respect of an order which was couched in more or less similar terms, that in legal position the order in question in that case did not comply with the provisions of Article 77(2) of the Constitution. It does not, however, appear that the attention of the Supreme Court was drawn to the relevant provisions of the General Clauses Act. Be that as it may, I need not in the view I have taken on other aspects of this matter, express my opinion on this point urged by on behalf of the petitioner. In this connection counsel also drew my attention to the observations of the Supreme Court in the case of State of Bombay v. Purushottam Jog Naik, : 1952CriLJ1269 and P. B Pardasani v. The State. . But as I have mentioned hereinabove, in the view I have taken, it is not necessary for me to go into the question any further.

6. The next question, is, whether Section 3 of the Imports and Exports (Control) Act, 1947 authorises imposition of restriction as to cover exports made indirectly. I have noticed the language used in Section 3, It authorises the Central Government to make provisions by prohibiting and restricting or otherwise controlling 'in all cases or in specified class of cases' the import, export etc. Therefore, the authority is given to im-pose restrictions in all cases and also in specified classes of cases. In my opinion the expression 'all cases' is wide enough to cover cases of both direct and indirect exports. Therefore, I am unable to accept the contention that the impugned order was without jurisdiction and as such the show cause notice was bad.

7. The third ground which was urged in this case was that the authority given to the Central Government by Section 3 of the Imports and Exports (Control) Act, 1947 was to restrict or to put restrictions on imports and exports of goods 'of specified description'. It was contended that the section did not authorise the Central Government to put an embargo 'against all exports to a particular country The question, therefore, is whether identification of goods as being destined for a particular country can be said to fulfil the requirement of 'goods of specified description' in Section 3 of the aforesaid Act. Whether identification is the specification that was required to be made under clause (a) of Section 3 of the Act. Counsel on behalf of the respondents contended that the expression 'in all oases or in specified classes of cases' in the section was wide enough to cover the impugned notification. He urged that the Court should take into consideration the fact that it was the Government policy to ban trade with Rhodesia because of the colour policy followed by that country. Therefore, in order to maintain international peace and harmony this restriction had been imposed and I should construe the provision of the Act liberally 'having regard to the mischief which the Act was intended to avoid and having regard to the purposes contemplated to be fulfilled by the Act. It is in those lights the counsel for the respondent contended that the expression 'all cases or specified classes of cases' should be construed and if such a construction was made it would be sufficient specified description of goods if the goods were merely identified as being goods meant for import or export to a particular country. Counsel in this connection drew my attention to several decisions in aid of the proposition that the Courts should take into consideration the state of affairs before the legislation was passed, and the mischief intended to be removed by the legislation in order to find out the true meaning of the expressions used in a particular statute, in aid of that submission reliance was placed on the decision in the case of Bengal Immunity Co. Ltd. v. State of Bihar. : [1955]2SCR603 ; Sarwan Singh Rattan Singh v. State of Punjab, : 1957CriLJ1014 ; and Ladore v. Bennet, 1939 AC 468. Section 11 of the Customs Act gives power to the Central Government to prohibit importation or exportation of goods for certain purposes. The goods, however, must be of spacified description. The purposes for which such prohibition can be made are provided under sub-section (2) of Section 11 of the Customs Act, 1962 and one of the purposes is in clause (q), namely, 'the fulfilment of obligation under the Charter of the United Nations for the maintenance of international peace and security'. The purposes also include the implementation of a treaty agreement or covenant with another country, Therefore, counsel for the respondents contended that having regard to the use of the language 'in all cases or in specified classes of cases' in Section 3 of the Act and in view of the fact that establishment of international amity and peace and the obligations under the Charter of the United Nations are purposes to be served this Court should hold that the specification of goods can be by mere identification of goods by destination to a particular country. While there is no dispute that if there is ambiguity the Court in order to resolve that ambiguity in a particular statute, or if any question of construction arises, is entitled to take into consideration the state of law prior to the introduction of the law and the mischief which the law intended to remedy, I am not concerned with any prohibition issued under Section 11 of the Customs Act, 1962. The expression, 'specified description' is used in Section 11 of the Customs Act, 1962 and if a question arises as to whether the aforesaid requirement of description would be sufficiently fulfilled by identification of goods as being destined for a particular country, ! need not express any opinion at this stage. But it has to be borne in mind that I am concerned with Section 3 of the Imports and Exports (Control) Act, 1947 and that Act does not refer to any of the purposes mentioned in Sub-clause (2) of Section 11 of the Customs Act, 1962. My attention, however, was drawn to sub-section (2) of Section 3 of the Imports and Exports (Control) Act, 1947 which I have noted before. By the said sub-section if there is a prohibition under sub-section (1) of the Imports and Exports (Control) Act, 1947 the legislature requires the said prohibition should be deemed to have been made under Section 11 of the Customs Act, 1962. But can it be said that by that deeming provision it has also to be deemed that when a prohibition is imposed under Sub-section (1) of the Imports and Exports (Control) Act, 1947 the same was also for the purposes of Section 11 of the Customs Act, 1962? The deeming provisions in legislations are occasions when very often pent up legal romance is allowed its full play. But I am of the opinion that while it is improper to boggle one's imagination it is not proper either simply because there is a deeming provision to deem further than what the legislature enjoins the Courts to do. The legislature in this case, in my opinion, does not enjoin that the purposes of Section 11 of the Customs Act, 1962 should be engrafted to an order made under Sub-section (1) of Section 3. Sub-section (1) of Section 11 of the Customs Act, 1962 empowers the Central Government to prohibit export or import of goods for the purposes mentioned in Sub-section (2) 'of that section. By virtue of Sub-section (2) of Section 3 of the Imports and Exports (Control) Act, 1947 the goods prohibited by Sub-section (1) of that section shall also be deemed to have been prohibited under Section 11 of the Customs Act 1962. The role of the deeming provision in a legislation is often to bring within the scope of legislation something which normally is not within its scope, but unless the legislation so enjoins the causation or the motivation of thing which is not within the scope of legislation does not come within the deeming provision.

8. The effect of the deeming provision, in this case in my opinion, is not that the order made under sub-section (1) of Section 3 of the Imports and Exports (Control) Act, 1947 should be deemed to have been made for the purposes enjoined under Section 11(2) of the Customs Act, 1962. Therefore, the principle which should guide the interpretation of the expression of an order made under Section 11 of the Customs Act, cannot, in my opinion, be applicable to an order made under Sub-section (1) of Section 3 of the Imports and Exports (Control) Act, 1947.

9. Quite apart from this, it appears to me that the construction which is being contended for on behalf of the respondents cannot be accepted. The effect of the construction would be to make the section read as follows (leaving aside the non-essential part).

'The Central Government may, by order published in the Official Gazette, make provisions for prohibiting, restricting or otherwise controlling, in all cases, or in specified classes of cases......... the import, export......... of goods of any specified description.'

10. Therefore, the expression 'allcases' has to be read in conjunction withspecified classes of cases. The expression'all cases' cannot be so construed as tomean the goods of specified description tomean goods identified by destination ofof the goods. 'Description' is here an adverb relating to the goods, that is to say,to the qualities of the goods and not tothe identification of the goods. It shouldbe borne in mind that by this provisionauthority is given to impose restrictionon the trade and must accordingly bestrictly construed.

11. In this connection, a similar question arose in the case of Karl Ettlinger & Co. v Ohagandas & Co.. AIR 1915 Bom 232. In that case under Section 19 of the Sea Customs Act. 1878 the Government was empowered to prohibit export of specified articles or things. The defendant in that case by a contract made on July 24. 1914 had agreed to supply to the plaintiffs one thousand tons freight at 11s. 6 d. per ton, the material to be carried being manganese, from Bombay to Antwerp, shipment in September. On the 7th September. 1914 the defendants telegraphed to the plaintiffs that owing to force majeure the contract was cancelled. The plaintiffs refused to accept cancellation and sued for damages It was contended that the Government of India's notification of 7th August. 1914 prohibiting export of all materials used for manufacture of ammunition and explosives covered the case and had rendered the contract impossible of performance. It was held that under the Sea Customs Act the. Government was only empowered to prohibit export of specified article and it was not enough to describe different commodities ejusdem generis in vague description. Inasmuch as the notification in that case did not specifically prohibit the export of manganese, performance of the contract had not become unlawful and the contract not having become impossible the defendants were held to be liable. I am in respectful agreement with the ratio of the said decision and I am of the opinion that the said ratio is applicable to the facts of this case. If that is the position then the order dated 17th April, 1964 which prohibited export of 'all goods', in my opinion, was beyond the authority given by Section 3 of the Imports and Exports (Control) Act, 1947. As such the show cause notice based on the alleged violation of the said order, in my opinion, is without jurisdiction. In the premises, on this ground I would hold that the notice was issued without jurisdiction and, therefore, the respondents had no authority to issue the show cause notice dated the 5th October, 1967.

12. The notice dated 5th October, 1967 is therefore, quashed and appropriate- writ in the nature of certiorari do issue and the respondents are restrained from proceeding under the said notice and a writ in the nature of mandamus do issue. The Rule is made absolute to the extent indicated above.

13. In the facts and circumstances of this case, there will be no order as to costs.

14. There will be a stay of operation of this order for a period of six weeks.


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