TMI Blog1986 (5) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... pping bills to the Customs Authorities at Calcutta for export of 80 bales of hessian bags and 50 bales of jute twist. On amendment of the shipping bills the goods were shown as intended to be shipped by the vessel s.s. Roy Bank . The Port of discharge was shown to be Beira and the country of the final destination was shown as East Africa. On or about the 14th October, 1967, a notice dated the 5th October, 1967 issued by the Assistant Collector of Customs for Exports, Calcutta, the appellant No. 1 was served on the respondent. By the said notice the respondent was directed to show cause why the goods covered by the said shipping bills should not be confiscated under section 113 (d) of the Customs Act, 1962 and why penal action should not be taken against the respondent under section 114 of the said Act. 3. It was alleged in the said notice inter alia that after the shipping bills had been classified on the basis of the declarations and after the respondent produced a sample drawn from the consignment of jute twine, correspondence between buyers and sellers were called for by the authorities. On scrutiny of the said correspondence it was found that the contract in respect of the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs pending thereunder, to act according to law and for cancelling or quashing the said notice and all proceedings thereunder. A Writ in the nature of prohibition was also sought commanding the appellants to forbear from giving any effect to or taking any steps pursuant to or in furtherance of the said notice. 9. It was contended in the writ petition inter alia that the Chief Controller of Imports Exports was an authority under the Exports(Control) Order, 1962 and the Imports (Control) Order 1955 promulgated by the Central Government in exercise of its power conferred by Section 3 of the Imports Exports (Control) Act, 1947 and that the Chief Controller of Imports Exports was not competent to set on behalf of the Central Government for the purpose of section 3. The said notification dated 17th November, 1965 having been issued by the Chief Controller of Imports Exports in purported exercise of the powers conferred by section 3 of Imports Exports (Control) Act, 1947 was illegal, invalid and void. 10. It was contended further that the said Notification dated 17th November, 1965 was beyond the powers conferred by section 3(1) of the said Act inasmuch as it completely prohi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as no specification of the goods intended to be prohibited. 16. On construction of section 3 of the Act of 1947 the learned Judge held that to the extent the said section empowered the Central Government to make provision for prohibition or restriction or control imports and exports in all cases, the same was wide enough to cover cases of both direct and indirect exports. On the second contention that whether the Chief Controller of Imports Exports was authorised to issue the said notification dated the 17th November, 1965 the learned Judge noted the respective contentions of the parties but did not express any opinion on the point. On the third ground the learned Judge accepted the contention of the respondent that the prohibition in the instant case on all goods was not permissible under section 3 of the Act of 1947. The said section empowered the Central Government to prohibit the imports and exports of goods of specified description and unless the descriptions of the goods were specified the prohibition was invalid. The learned Judge noted and applied the principles laid down in a decision of the Bombay High Court in Karl Ettlinger Co. v. Chagandas Co., reported in AIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing :- (q) the fulfilment of obligations under the Charter of the United Nations for the maintenance of international peace and security; (v) any other purpose conducive to the interest of the general public". 19. Construing the said section, learned Advocate submitted that the objects for which prohibition under the said section could be imposed were attracted to the Imports and Exports (Control) Act, 1947 and prohibition under the 1947 Act could also be imposed for the said object. It was submitted that prohibition of export of all goods to Rhodesia had been imposed in public interest and in order to implement the policy of the Government of India to impose an economic sanction on Rhodesia as a protest against the colour bar as prevailing in Rhodesia. Learned Advocate submitted that this was a mischief which was intended to be prevented by the Act of 1947 and in that background section 3 of the Act of 1947 should be construed liberally so that the public policy was implemented and the interest of the general public of India was maintained. 20. Learned Advocate, also drew our attention to section 4 of the Imports Exports (Control) Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., reported in AIR 1957 SC 628. In this case the Supreme Court noted with approval the principles laid down in the well known English decision viz. Heydon s case reported in 76 E.R. 637. It was laid down in that case that though prima facie a statute has to be construed literally but to arrive at the proper meaning it was necessary to consider the aims, scope and object of the entire Act. It was necessary to consider what was the law before the Act was passed; what was the mischief or defect for which the law had not provided; what remedy in legislature had provided and the reasons for such remedy. (d) State of U.P. v. C. Tobit and anr., reported in AIR 1958 S.C. 414. In this case the Supreme Court reiterated the principles laid down in the case noted above and laid down as follows :- It is well settled that the words of a statute when there is doubt about their meaning are to be understood in the sense in which they best harmonize with the set of the enactment and the object which the legislature has in view. Their meaning is found not so much in a strictly grammatical or etymological propriety of langauge, not even in its policy use, as in the subject or in the occasion of wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich should mean the president and the prohibition has been imposed validly and properly. The appellant No. 1, the Chief Controller of Imports and Exports has signed the said notification only for the purpose of authentication of the same. 25. Learned Advocate for the respondents contended to the contrary. He submitted that under section 3 of the Imports and Exports (Control) Act, 1947 to impose a valid prohibition or restriction of Imports or Exports, the goods of which imports and exports were being prohibited or restricted had to be specified by their description. He submitted that the destination of the goods reported or the source of origin of the goods in cases of import were not the description of the goods. The description must relate to the inherent character of the goods for the purpose of identification of the goods. Learned Advocate submitted that this interpretation has been laid down and followed by the authorities themselves. He drew our attention to Imports (control) Order, 1955. Section 3 of the said order reads as follows : (1) Save as otherwise provided in this order, no person shall import any goods of the description specified in schedule 1, except under an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Government of a state shall be expressed to be taken in the name of the Governor. (2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order of instrument which is authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor." 31. Learned Advocate contended that in the instant case the Chief Controller of Imports and Exports by issuing the said notification by singing his own name has assumed the authority of the Central Government and/or the President unless it could be shown that he was authorised to do so the notification would be invalid.. He submitted that even assuming the words President should be read for the words Central Government in the body of the notification, the execution of the order also must be in the name of the President and the Chief Controller of Imports Exports cannot sign the notification in his name only. 32. Learned Advocate for the respondent contended that though this point had not been decided in the trial court and though no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tary had authority to act in the name of the Central Government or the President. The order of sanction was held to be invalid. (e) The Assistant Controller of Customs for prevention and others v. New Central Government Jute Mills Co. Ltd., reported in AIR 1973 Cal. 91. This decision of a Division Bench of this Court was cited for the proposition that under Or. 41. R. 27 of the Civil Procedure Code the respondent in an appeal was entitled to challenge the correctness of the findings against it in order to support the judgment passed against the appellant. (f) Shri Chandra Prabhu Jain Temple Others v. Harikrishna and another, reported in AIR 1973 SC 2565. This decision was cited for the proposition laid down by the Supreme Court that where the respondents had a decree in their favour, they could support the said decree on any of the grounds decided against them by the Court which passed the decree and when the respondents sought to do this they were only supporting and not attacking the decree. (g) Karl Ettlinger Co. v. Chagandas Co., reported in AIR 1915 Bombay 232. In this case, the plaintiff a German firm doing business in London entered into a contract on the 24th Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xports has been authorised to authenticate orders passed in the name of the President. 35. We have some doubts whether in view of the specific provision of Article 77 of the Constitution an order expressly required to be made in the name of the President can be made in the name of the Central Government as has been done in the instant case and then support the order under the General Clauses Act. This aspect of the matter has not been gone into in any of the decisions cited before us. We also note that it has not been shown this which the Chief Controller of Imports Exports is authorised to act on behalf of the Central Government. We also note the contention of the respondent that this order might have been made in the name of the Central Government but it has not been executed on behalf of the Central Government, because the Chief Controller has signed his own name. We also note, that in grounds Nos. 20 and 21 of the grounds of appeal it is contended by the appellant that the Chief Controller of Imports Exports was competent or authorised on behalf of the Central Government to sign and issue the said notification and to act on behalf of the Central Government. The view we h ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
