TMI Blog1987 (2) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... ne in lieu thereof in certain others ; (b) various appeals preferred against such orders, were disposed of by the Board of Central Excise and Customs in six orders between 1-6-1968 and 13-3-1969 by which redemption on payment of various fines in lieu of confiscation was allowed in all the cases. The aggregate of such fines amounted to Rs. 41,86,172/-; (c) the applicant, in accordance with the orders in original as well as those in appeal allowing redemption, redeemed the goods from confiscation, paying altogether an amount of Rs. 23,45,855/- in cash on diverse dates between 3-11-1967 and 21-5-1969 and furnishing a bank guarantee in the balance sum of Rs. 18,40,317/- in the Hon ble Supreme Court; (d) ultimately, as a sequel to the aforesaid appeals against the orders of the Board pursuant to a remand by the Hon ble Supreme Court, the Tribunal by its order, dated 30-5-1984, held that the fines in lieu of confiscation should be reduced to 25% of the C.I.F. value of the aggregate of the goods imported and observed further The consequential relief which flows from this order be given to the appellants forthwith as the matter is quite old. Further, we notice the appellants had als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tual payment ; (c) unnumbered application, dated 6.6.1984, for arranging the return of the bank guarantee furnished by the appellant to the Registrar of the Hon ble Supreme Court in Civil Appeal Nos. 1141-43/1970; (d) C/Misc/288/85-A on 2.12.1985 for punishing respondent No. 1 (Collector of Customs, Bombay) for the contempt of interfering with the process of law or pre-empting the judicial decision of the matter sub judice before Hon ble Tribunal . 5. The respective orders made on each one of the applications aforesaid are - (a) the Miscellaneous Order No. 458/84-A, dated 19.6.1984 by which the Collector of Customs, Calcutta was impleaded as a respondent in the array of parties as prayed for; (b) the Miscellaneous Order No. 20/85-A, dated 15.3.1985 by which the Collector of Customs, Bombay was directed to grant consequential relief allowed by the Tribunal by 16.4.1985" and the Collector of Customs, Calcutta was similarly directed to grant consequential relief" by 25.4.1985; (c) the Miscellaneous Orders No. 403/84 - 457/84, dated 19.6.1984 by which the Tribunal confirmed the fact that the bank guarantee referred to above stands discharged without any claims thereund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wers are not powers over the substantive rights of a party." [AIR 1961 S.C. 218 - Padam Sen v. The State of U.P.]. (c) (i) While, obviously, it is none of these, in an application enclosed with what purports to be an appeal against the Tribunal s orders, the appellant talks of restitution on principles analogous to those in S. 144 of the C.P.C. and compensation for tremendous losses and agony undergone by the appellants ; (ii) what is restitution in terms of S. 144 of the C.P.C. and how does restitution arise in the facts and circumstances of the case ? ; (iii) restitution, in terms of S. 144 of the C.P.C. is confined to a case where a decree or order made by court is varied or reversed in an appeal or is set aside or modified in any Suit instituted for that purpose. It is the court which passed the original decree that has either been varied, modified or set aside that is to act in restitution. Not the court which had modified, reversed in appeal or set it aside in a separate suit, as the case may be. The restitution is to the extent it will, as far as may be, place the parties in the position they would have occupied but for such decree or order or such part thereof as has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is extinguished and it vests in the Government. It is an act of appropriation of private property for State or sovereign use. Confiscation is an act done in some way on the part of the Government of the country where it takes place and in some way beneficial to that Government [per Lord Ellenborough in Levin v. Allnut - (1812) 15 East 267 at 269]. The seizure and appropriation of property as a punishment for breach of the law whether municipal or international was held to be confiscation in (1947) Ch. 629 [Frankfurther v. W.L. Exner]. So also, property confiscated was construed to mean, in its ordinary sense, property taken by the Crown by way of penalty - in Re Burnett [(1902) 1 Ch 858 cited in Stroud s Judicial Dictionary], Likewise, criminal law provides for confiscation of property produced before the court or in its custody or used for the commission of any offence [S. 452 of the C.R.P.C., 1973]. Confiscation is, in the circumstances, penal in nature. One would be hard put to find an award of interest by way of restitution on a penalty or fine set aside in appeal or revision in criminal law. The fine or penalty goes to the State and to none else and when set aside, there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not penal in character since, it represented, in reality, the price of the goods. With confiscation, the punishment was complete and the crime had been washed out (crime + punishment = cleansing of the person). The loss of goods worth Rs. 40,00,000/- is adequate punishment on the Petitioners says he in a written note with a letter, dated 26.5.1986 submitted after the arguments. Does he realise the inconsistency with what was urged before the Supreme Court and the Tribunal thereafter in support of a reduction in the fine? Or was all that conveniently forgotten or one can approbate and reprobate ? If the fine was merely the price for the confiscated goods, how at all could it be said to have been glaringly disproportionate to the penalties levied on the Mills and reduced to 25% of the C.I.F. price? If the fines were price and not penalty, why should they have been reduced at all? Are goods worth, admittedly, 40 lakhs, to be sold at a price of 25% of their C.I.F. price in lieu of confiscation? If by the word fine , all that was intended was price , what prevented the legislature from using price instead of fine ? The confusion is compounded by citing the illustration of the en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to Rs. 41,86,172/-] is sought to be sustained on the ground that it is compensation; (ii) compensation for what? The agony suffered? That was his own choosing. He need not have paid the fines at all, in which case, in all probability, the Government would also not be put to any loss. The goods could have been disposed of at a price that might include not merely their landed cost and redemption fines but some profit as well - such profit as the applicant, in all likelihood, earned on the goods after redemption. Is compensation to be claimed for injury assumed to have been caused for a voluntary act?; (iii) compensation for loss ? When was the loss quantified ? Has the applicant disclosed what loss he had suffered except repeating parrotwise tremendous losses . What is the profit earned on the goods redeemed ? No knowing; (iv) award of interest as part and parcel of compensation provided for in a statute stands altogether on a different footing. That is where property is compulsorily acquired, say, under the Land Acquisition Act or the Estates Abolition Acts or any of the Nationalisation Acts. The right, title and interest of a person are extinguished compulsorily, subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government in terms of Sections 20 and 55 of that Act, it was held that on the language of Section 55 as well as the general principles of law interest was payable. The decision of AIR 1963 S.C. 1171 [The National Insurance Co, v. Life Insurance Co. v. Life Insurance Corporation] is an instance arising under a Nationalisation Act. Despite there being no specific provision for payment of interest on delayed payment of compensation under the Life Insurance Corporation Act, interest was awarded on the basic principle of compensation on dispossession; (v) confiscation is not to be confused with compulsory acquisition. Confiscation, admittedly, is penal in nature and character. If confiscation is to be compensated, it loses its character of confiscation altogether. Again, confiscation was upheld throughout. Is the applicant claiming compensation for confiscation on the analogy of the dispossession occurring on compulsory acquisition ? Is such a claim sustainable ? The answer is obvious; (vi) while it may be that under the Criminal Procedure Code compensation is payable, as retributive or expiatory of the offence, for an accusation without reasonable cause (S. 250 of the C.R.P.C.) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... des payment of interest on the amount of fine required to be refunded in terms of the order, is one of despair; (ii) an application for execution is never made to an appellate forum. On the contrary, in AIR 1961 S.C. 264 (Ambalal v. Union of India) it was held that even where the confiscation of some goods was declared to be illegal, that Hon ble Court had no jurisdiction even to reduce the redemption amount correspondingly, however, justified such a plea may be, as it is a matter entirely within the discretion of the officer concerned in terms of Section 183 of the Sea Customs Act (comparable to Section 125 of the Customs Act, 1962), Liberty was, hence, afforded for applying to the concerned officer for a corresponding reduction of the fine. Although there were contrary observations in Boormull s case (AIR 1974 SC. .859), on the issue of jurisdiction of the Hon ble Supreme Court, there was no difference. The aforesaid case is relevant only to the extent of rebutting the argument that this Tribunal is an appellate forum and not to be confused with an executing court; (iii) nor is the award of interest by way of compensation, consequential relief. Under the Court Fees Act, for e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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