TMI Blog1961 (12) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... nd hence punishable under Section 167(2) and (3) and Section 168 of the Sea Customs Act. On 20th July, 1960, the petitioner is said to have submitted an explanation stating that the produce of the island were all perishable and non-dutiable goods and that all along such produce were landed at Vedalai without any restriction. Later, that is on 19th September, 1960, the petitioner asked his counsel to appear before the Collector of Central Excise, Madras, to make representations about the charge contained in the show-cause notice. Without hearing his counsel the Collector passed the impugned order. 2. By the order the Collector gave an option to redeem the confiscated goods on payment of a fine of ₹ 50 and the confiscated boat on payment of a fine of ₹ 1,000. In addition, the Collector also imposed a penalty of ₹ 500 on the petitioner and also a similar penalty on the tindal under Section 167(8) of the Sea Customs Act. 3. Before I deal with the contentions of counsel for the petitioner I may advert to a preliminary objection taken by the Additional Government Pleader regarding the maintainability of this application. Against the order of the Collector of Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot find any substance in this contention. 6. The second ground urged is that the respondent had no jurisdiction to impose a penalty on the petitioner under Section 167(8) of the Sea Customs Act. That provision relates to the importation or exportation of goods which for the time being were either prohibited or restricted by or under Chapter IV of the Sea Customs Act. There is no importation of goods in this case because Muyaltheevu is Indian territory and it lies three miles off the coast of Ramanathapuram District. The contravention alleged in this case really relates to the landing of goods at a place which was not declared a port for the coastal trade by the concerned authority under the Sea Customs Act. Chapter III of the Sea Customs Act gives power to the Collector of Customs to appoint ports, wharves and customs house, to declare places to be ports for the carrying on of coastal trade and foreign trade and to declare warehousing ports and public warehouses. Admittedly neither Muyaltheevu is declared a port for shipment nor Veddlai is declared a part for landing goods carried in the coastal trade. Mr. Cassim, counsel for the petitioner contended that the authorities should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng one thou- sand rupees. Clause (1) of Section 167 has no application here. Clause (2), however, applies to the goods landed at Vedalai and shipped from Muyaltheevu. The penalty for Such contravention is confiscation of the goods. Clause (3) penalises the person who ships or lands goods in contravention of the orders under the provisions of the Act. The penalty for such contravention is the imposition of a fine not exceeding ₹ 1,000 on such person. Clause (8) of Section 167 deals with the importation or exportation of goods prohibited or restricted by or under Chapter IV of the Act. As already pointed out by me, the contravention complained of in this case does not fall under Section 167(8) of the Sea Customs Act. In the counter-affidavit filed by the respondent it is explained that the mention of Section 167(8) of the Sea Customs Act in the order of the Collector is an inadvertent mistake for Section 167(3). This explanation can be accepted because the show-cause notice itself refers only to Section 167(3) and not to 167(8). However, the authorities of the Customs Department entrusted with the duty of punishing persons by the imposition of a fine for c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 167(3). 10. It was contended by counsel for the respondent that no real prejudice was caused in this case because the petitioner had in his explanation admitted the contravention complained of in the show-cause notice. This cannot be construed as an admission of liability to the penalty imposed under Section 167(3). As I have already indicated, the mere insertion of the section or the rule contravened in the show-cause notice would not be sufficient compliance with the spirit of the law. In addition the show-cause notice must also mention the penalty for the contravention of the provisions of the Act for which penal action is proposed to be taken. 11. In this view, that part of the order imposing a penalty of ₹ 500 on the petitioner must be held to be illegal as it is not preceded by a proper show-cause notice. 12. The contention of the counsel for the petitioner that there was no finding in the order of the Collector that the petitioner shipped or landed the goods in contravention of the provisions of the Act has really no substance because that was the basis upon which the show-cause notice was issued and the petitioner very well understood by reason of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent for a trivial offence and he complained that the Collector had not taken note of the mitigating circumstances in this case viz., that no port had been declared in the neighbourhood of Muyaltheevu and Vedalai for transport of goods from Muyaltheevu to the main land. It is apparent that the contravention complained of would assume a different significance if the Collector was satisfied that on previous occasions such transport was done after obtaining a special permit by the lessee of Muyaltheevu. If that were the practice in vogue for a number of years even the tindal must have known that and the Collector would be justified in assuming that the contravention was wilful or mala fide. The fact that no port in the neighbourhood of Vedalai had been declared to be a port for coastal trade is a question which the Collector ought to have taken into account in assessing the degree of culpability involved in the contravention. It cannot, therefore, be said that the facts of the case have been examined by the Collector with a view to find out if the contravention was carried out with either knowledge or intention which would amount to culpable knowledge or culpable intention involving th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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