D.N. Sinha, J.
1. The facts in this case are shortly as follows: The petitioner is a firm of established importers of Iron and Steel materials. On or about 31st December, 1957 the petitioner got a license from the Government of India being License No, STC/BK/TDS/98 for the importation at the Port of Calcutta and Bombay of 9299.379 tons of Mild Steel plates, from the areas mentioned therein, of the value c.i.f. of Rs. 94,69,500/-. It has been pointed out in the license itself, the original of which has been produced in court, that it was issued subject to the policy outlined in the Import Trade Control Book, published by the Ministry of Commerce and Industry, New Delhi, and that the limiting factor in the license was the weight and c.i.f. value. It has also been stated therein that the importers, who mention incorrect prices in the application fora custom permit will be penalised. On or about 15th January, 1958 the petitioner imported through Messrs. 'Gosho Co. Ltd., of Tokyo, Japan, ex. s.s. 'Eastern Maid', 76 pieces of M.S. plates to BSS-15, size 1-1/8' x 4' x 8', weighing 49.817 long tons, into the Port of Calcutta. On arrival of the said vessel at the Port of Calcutta on or about the 2nd week of February, 1958, the petitioner on 13th February, 1958 submitted a Bill of Entry for home consumption, relating to the said consignment. In the Bill of Entry so submitted, the value of the goods was declared as 1762-15-6 c.i.f. The petitioner further obtained a custom clearance permit in respect thereof, being No. SIC/CP/TDS/1201/124, wherein, the value was shown as Rs. 23,586/- c.i.f. This Bill of Entry together with the clearance permit was accepted by the Customs authorities and registered as I. F. R. No. 423 of 14-2-1958. Thereafter, the goods were assessed and it is admitted that under item 63(19) of the Tariff Schedule, the goods were found to be duty free. They were cleared from the custom barrier, between 18th and 22nd February, 1958. Thereafter, the custom authorities received certain informations and seized a number of documents and files from the office of the petitioner firm. It appears from the documents so seized, that the petitioner had imported these 76 pieces of M. S. Plates ex. ss. 'Eastern Maid' of the value of 2504-13-4, but had declared the same to be of the value of 1762-15-0. The customs clearance permit that was obtained, was of the value of Rs. 23,586/- whereas the goods cleared were in excess of that amount by Rs. 10,286.56 np. It appeared from a photostatic copy of the relative invoice, which was among the seized documents, that the invoice price was 2224-3-1, f.o.b. and the freight was 312-12-0. The customs authorities asked for particulars from the petitioner's clearing agents, the Pioneer Consolidated Co. of India Ltd. From their reply and the other documents seized, it appears that the original Bill of Entry as made out by the clearing agents correctly showed the value as 2540-13-0. It was subsequently scored out and the figure of 1762-15-6 was substituted therefor. According to the clearing agents, what happened was that on 5th February, 1958 the petitioner requested them to give inspection of the documents which they had received from the Punjab National Bank Ltd. and the documents were handed over to the petitioner's representatives. Later, the custom agents received a request from the petitioner for a set of blank Bill of Entry forms, which were supplied. The relevant documents taken for inspection were returned on the 12th February, 1958 and, according to the clearing agents, the substitution was made without their knowledge, and they apologised to the customs authorities for not having checked the documents more closely before submitting the same. On the 9th January, 1959 the Assistant Collector of Customs for appraisement issued a notice upon the petitioner, referring to the above facts, and asking them to show cause why penalty should not be imposed upon the petitioner, being a 'person concerned' in the offence of unauthorised importation under Section 167(8) of the Sea Customs Act. It was stated that the petitioner might produce all corroborative evidence in support of their explanation, and if required, may be heard in person. A copy of this show-cause notice is at page 1 of the brief of correspondence. According to the said notice, the customs clearance permit was for Rs. 23,586/- and goods worth Rs. 10,286.56 nP. were imported without any valid import license, in contravention of the Government o India's Order No. 17/55 dated 7th December 1955 read with section 3 o the Import and Export (Control) Act, 1947 and Section 19 of the Sea Customs Act. Thereupon, instead of showing cause, the petitioner made this application and this rule was issued on 12th November, 1959 by Sen, J., who also issued an Order of interim injunction. The matter has now come up before me for hearing.
2. Mr. Deb appearing on behalf of the petitioner, has taken two points. The first point taken is that the goods concerned in this case, having left the custom barrier, after obtaining an order of removal under Section 89 of the Sea Customs Act, there is no further jurisdiction left in the customs authorities to issue the show-cause notice, or to levy any penalty, or indeed, to take any further steps in the matter under the Sea Customs Act. The second point taken is that even assuming that the facts stated in the show cause notice are true, the matter does not come within the purview of Section 167(8) of the Sea Customs Act, and that the show-cause notice and the proceedings initiated thereby, are without jurisdiction.
3. I shall now deal with the first point, which is of some public importance. Mr. Deb argues that the whole scheme of the Sea Customs Act shows that all the proceedings contemplated thereunder must take place before the goods are cleared from the customs barrier. According to him, once an order is obtained under Section 89 and goods are cleaved, there is no further jurisdiction left in the customs authorities to proceed under Section 167(8) of the said Act. He says that perhaps the only thing that Could be done in such circumstances was the realisation of any short-levy under Section 39 of the said Act. According to learned counsel, the imposition of a penalty is no longer possible, once the goods have left the customs barrier. Section 89 of the Sea-Customs Act is set out below:
'When the owner of any goods entered for home consumption and (if such goods be liable to duty) assessed under Section 87, has paid the import-duty (if any) assessed on such goods and any charges payable under this Act in respect of the same, the Customs-officer may make an order clearing the same; and such order shall be sufficient authority for the removal of such goods by the owner.'
4. Mr. Deb has taken me through various sections of the Sea Customs Act, to support his argument that the scheme of the Act precludes any further action if the goods have left the customs barrier upon an order being made under Section 89. That the goods had left the customs barrier when the show cause notice was issued is not disputed. I am, however, unable to accept the argument that the scheme of the said Act is that no penalty can be levied under Section 167(8) of the Sea Customs Act after the goods have left the customs barrier, even though an order under Section 89 may have been made. I shall briefly refer to the sections that have been placed before me by Mr. Deb to support his argument. Firstly he refers to section 29, which lays down that on the importation of any goods, whether liable to duty or not, the owner of such goods shall, in his bill of entry, state the real value of the goods to the best of his knowledge and belief and shall subscribe a declaration of the truth of such statement at the foot of such bill. Section 29-A deals with the assessment of duty prior to examination of goods. Section 29-B deals with the provisional assessment of duty. Section 36 lays down that except as laid down in Section 94 (which has no application here, because the goods are for home consumption and not for ware-housing) no amendment of a bill of entry shall be allowed after such goods have been removed from the custom-house. Section 39 deals with the case of realisation of duty not levied, short-levied or erroneously refunded. Section 55 deals with the preparation of the manifest, which must be in accordance with the bill of entry. Section 82 lays down that no goods shall be allowed to leave any such vessel, unless entered in the original manifest and Section 86 lays down that the manifest should be in accordance with the bill of entry. Section 89 relates to the clearance of goods for home consumption which has already been set out above. I do not see how these sections support the argument that has been advanced by the learned counsel. On the contrary, it is evident that if the allegations made by the Customs authorities be true, each of these provisions of law has been violated. Coming to section 167(8) we find that there are two kinds of penalty contemplated. One is a penalty which attaches to the goods, which are liable to confiscation and is, therefore, a penalty in ram. There is also a penalty that can be imposed upon a 'person concerned', not only in the illegal importation of goods but also in any attempt to do so. This is a penalty which acts in personam. In other words, the imposition of such a penalty, is not directly connected with the offending goods, but is a punishment inflicted on the 'person concerned' in the illegal importation of goods or the offences set out in Section 167(8). For this purpose, whether the goods are within the customs barrier or not, seems irrelevant. It is not necessary for me to deal with the question as to whether the goods can be confiscated after they have left the customs barrier, a question,which may be determined on an appropriate occasion. In my opinion, however, it is not the scheme of the Act that a personal penalty cannot be imposed under Section 167(8) after the goods have left the customs barrier, even though an order has been obtained under Section 89. Mr. Deb argued that the various procedures for assessment etc. laid down in the Sea Customs Act, limited the power and jurisdiction of the customs authorities to a point of time prior to the order made under Section 89. But once the goods have left the customs barrier nothing further can be done, save and except proceedings under Section 39 of the said Act viz., to make the importer liable for non-levy or short-levy. In my opinion, this argument is to be rejected. Indeed if this argument is to be accepted, then it puts a premium on any fraud or chicanery that may be perpetrated by an importer, who, by questionable means, might have been temporarily successful in throwing dust into the eyes of the customs authorities, and in removing the materials, out of thecustoms barrier. That is most certainly not thescheme of the Act. Whether the importer has committed an offence under Section 167(8) has nothing to do with the passing of the goods beyond the customs barrier. If the offence has been committed while the goods are within the customs barrier, it cannot cease to be an offence, just because the goods have been removed beyond the customs barrier. The learned Additional Solicitor-General is referred me to a decision of the Privy Council, Maritime Electric Co. v. General Dairies Ltd. . The facts were as follows: The respondents, who carried on a dairy business in Frederiction, New Brunswick, bought from the appellants, electric energy, which they used in the manufacture of butter, ice cream and other milk products. To arrive at the correct amount of electric energy supplied, it was necessary to multiply the meter dial reading by ten. But owing to the mistake on the part of the appellants, that was not done over a period of 28 months, with the result that during that time the respondents were charged with only 1/10th of the electric energy supplied to them. On a claim by the appellants to recover the balance, it was urged that the appellants had made out bills and had taken certain amounts as electric charges and had given receipts. It was urged that thereafter, they were estopped from saying that the proper charges were not levied. Lord Maugham said as follows:
'It cannot be doubted that if the appellants, with every possible formality, had purported to release their right to sue for the sums remaining due according to the schedules, such a release would be null and void. A contract to do a thing which cannot be done without a violation of the law is clearly void. It may be asked with force why, if a voluntary release will not put an end to the obligation of the respondents, an inadvertent mistake by the appellants acted upon by the respondents can have the result of absolving the appellants from their duty of collecting and receiving payment in accordance with law.'
5. The Judicial Committee held that there could be no estoppel in the case of such a statute under consideration and that the Public Utilities Act was enacted for the benefit of a section of the public, that is, on grounds of public policy in a general sense. In my opinion, the Sea Customs Act falls in this category, and following the principle enunciated by the Privy Council, it must be held that if an offence has been committed under Section 167(8), there is no estoppel on the part of the sea customs authorities from taking action under it, even though the goods might have passed the custom barrier after an order has been made under Section 89 of the Sea Customs Act.
6. I now come to the second point. Shortly put, Mr. Deb's argument is that his client 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 con-travention of law, because there was a 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 than 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. If that is the law, then no court would ever be able to deal with a case in which the plaint discloses no cause of action. Surely, it has jurisdiction to consider and decide the point itself, as to whether the plaint discloses a cause-of-action or not. There is no inherent lack of jurisdiction in this respect, just because the facts stated in a plaint disclose no cause of action. In my opinion, this application is entirely premature, and ought not to be entertained at this stage. The learned Additional Solicitor General has referred to a decision of mine, East India Commercial Co. Ltd. v. Collector of Customs, : AIR1957Cal606 . There also, the petitioners came to the Court under Article 226 to stop proceeding, on the allegations that it was without jurisdiction. I have pointed out that such show-cause notices were not statutory notices. I said as follows:
'It was a notice given because rules of natural justice required that the person whose goods were to be confiscated or upon whom a penalty was to be imposed, should be afforded an opportunity to defend his case. Such a notice should not be construed like a statutory notice. What was to be considered was whether it conveyed to the delinquent tile exact case which he had to meet. It would be for the petitioners to establish to the satisfaction of the respondents that the importation of the goods was in fact made according to law. If they were successful in showing this to the authorities concerned, they may not proceed any further and may not either confiscate the goods or impose any penalty. There was no question of the respondents not having jurisdiction to deal with the matter and they had done nothing more than issue a notice proposing to do certain acts and asking the petitioner to show cause why it should not be done. There was no reason why the Court should interfere at that stage. If the authorities after investigating the matter made an order not in accordance with law or followed a procedure not known to law then the petitioners might ask for relief at the proper stage.'
This decision of mine was upheld by the Court of Appeal presided over by Das Gupta, C. J. by judgment dated January 5, 1959. The learned Chief Justice held that the application was premature and that the Court should not interfere at that stage. Actually the learned Chief Justice quoted a part of my judgment cited above, and approved of it. He proceeded to say as follows:
'I can find nothing in principle or in authority to justify the conclusion that before even the enquiry can be made it must first be shown that there has been contravention. The mere fact that in the notice a statement has been made to the effect that it appeared to the authority that there has been contravention does not, in my opinion, make it necessary for this court to examine the question whether there are grounds which would justify the authority to say that it so appeared to him. The substance of the matter is this that the authority being of opinion that an enquiry is required to ascertain whether there has been such contravention as would entail an order of confiscation and other penalties, he has issued a notice. All that the statement mentioned above, that the sale proceeds were deemed to be liable to confiscation, should be taken reasonably to mean is that there are good grounds in his opinion for making an enquiry into the matter.'
7. It is unnecessary therefore to reiterate the position in law upon this point, which seems to me to have been clearly enunciated above. I have been informed that this decision is the subject matter of an appeal to the Supreme Court. But until the decision is set aside, it must be taken to be good law. For these reasons, I hold that the second point raised is also without substance and that the Assistant Collector of Customs has got ample jurisdiction to proceed with the matter and hold the enquiry and that this application is premature. Lastly, I find that the question of delay has been mentioned in the affidavits although it was not pressed before me. It does seem that there has been considerable delay in coming to this court, which has not been satisfactorily explained. However, it is not necessary to decide this case upon this preliminary point.
8. The result is that this application must bedismissed. The rule is discharged. Interim orders,if any, are vacated. There will be no order as tocosts.