TMI Blog2007 (1) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... firms and the manner in which they allegedly drew these duty drawbacks illegally by showing fictitious exports is mentioned in para 72 of the complaint. It is alleged that A.K. Saxena verified the feasibility report of factory stuff of export goods in respect of non-existing firms, namely, Dig Dig Creations, Anu Exports, Amico International, Zebra Inc. and Prayas Enterprises. The allegations against him specifically are that he connived with other accused for fraudulent export of inferior quality of readymade garments, which had been over invoiced. Some of the other accused persons, namely, Pawan Kumar, Govind Jha, Radhey Lal and Gurcharan Singh in their statements under Section 8 of the Customs Act have also corroborated this fact. It is stated in the complaint that A.K. Saxena was supposed to draw representative samples from the consignments of exported goods but, in fact, he has not drawn the samples from the containers, which were to be exported but arranged samples from open market from Faridabad. According to the allegations made in the complaint, samples of exported goods received from Dubai authorities through Consulate General of India were old, used and torn rags only. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder :- "(17) Section 135 of the Customs Act, is being amended so as to provide for prosecution in cases of mis-declaration of value and of fraudulent exports." 5. As noted above, first argument of the learned counsel for the petitioners was that expression 'any person' occurring in this Section, who could evade duty etc. cannot include a customs officer, as it has to be necessarily some person other than the customs officer. In so far as the customs officers are concerned, offences committed by them were specifically made punishable under Section 136 of the Act. 6. This submission of the counsel for the petitioners appears to be attractive in the first blush. However, reading of Section 136 would make it clear that the offences, which are made punishable under that provision, are : (a) relating to evasion of customs duty; (b) exceeding/misusing his position as customs officer in carrying out searches, arrest etc. indiscriminately and satisfying himself that he had reason to believe that such search and arrest were needed as required under sub-section (2) of Section 136; (c) disclosing any particulars learnt by him in his official capacity in respect of any goods, except in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, a person will be concerned in the doing of an act if he takes part or consciously takes any step whatsoever in the illegal import of the goods. After considering the entire facts and circumstances of this case it is clear that applicant A.K. Saxena is well covered under the definition of word 'Concern' for along with other applicants for and it cannot be said that his arrest under Section 132/135 of the Customs Act is illegal fraudulent for claim of duty drawback is also punishable u/s 132/135 of Customs Act." 7. I do not find any fault with this approach of the trial court and, therefore, am of the opinion that Sh. A.K. Saxena could be arraigned as accused person in relation to nature of the allegations made against him. 8. Second argument is also meritless. Section 135 of the Customs Act makes certain accounts of evasion of duty or prohibitions as punishable offences. The unamended provision reads as under :- "135. Evasion of duty or prohibitions. - (1) Without prejudice to any action that may be taken under this Act, if any person - (a) is in relation to any goods in any way knowingly concern in any fraudulent evasion or attempt at evasion of any duty charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Sanjeev Kumar Gupta v. Commissioner of Customs, 2001 (1) JCC 146 (Delhi) in which it was clearly held that mis-description of goods or the value of the goods to be exported makes such goods prohibited in terms of Section 18 and 67 of FERA read with Section 11 and 50(2) of the Customs Act and hence, punishable under Section 135 of the Act. The learned ACMM also relied upon the judgment of the Supreme Court in Om Prakash Bhatia v. Commissioner of Customs, Delhi, 2003 (155) E.L.T. 423 (S.C.) = 2003 (88) ECC 457 (S.C.) with regard to claim of duty drawback and following observations are quoted from the said judgment :- "export prohibited goods organised racket to claim fraudulent drawback over invoicing prohibition of importation or exportation could be subject to certain prescribed conditions to be fulfilled before or after clearance of goods. If conditions are not fulfilled, it may amount to prohibited goods where the export value is not correctly stated, but there is intentional over invoicing then it would amount to violation of the conditions for import/export of the goods. The purpose may be money laundering or some other purpose, but it would certainly amount to illega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y held to be retrospective. The usual reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error, whether in the statement of the common law or in the interpretation of statutes. Usually, if not invariably, such an Act contains a preamble, and also the word 'declared' as well as the word 'enacted'." (approved by the Supreme Court in Central Bank of India v. Their Workmen, AIR 1960 SC 12) 11. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law, retrospective operation is generally intended. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. 12. A proviso added with effect from 1-4-1988 to Section 43B inserted in the Income-Tax Act, 1961 with effect from 1-4-1984 came up for consideration in Allied Motors (P) Ltd. v. Commissioner of Income-tax, AIR 1997 SC 1361 and it was given retrospective effect from the date of inception of the section. The reason given was that the proviso was added to rem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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