TMI Blog1963 (5) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... e import of which alone was permitted under the terms of the licence; also that they were not cut to shape in accordance with the terms of the licence. There was also an error in regard to the value declared: the actual value' of the goods was found to be ₹ 43,697-37 np. , which was in excess of the limit imposed by the licence. Thus, there had been three matters on which the respondent was found to have contravened the law: (i) importing a class of goods different in quality and shape from that permitted (ii) a. mis -declaration of the value of goods worth ₹ 43 69737 np-28,501/- and (iii) consequent under-valuation which resulted in the loss to the Government of duty relative to that amount, that is ₹ 15,232-58 np. . ( 2. ) The Collector of Customs was prepared to take a lenient view of the first of the breaches, mentioned above, as similar goods were allowed to be imported on the previous occasion, and for the further reason that under the conditions of the licence the respondent had only to re-export the goods. But in regard to the other two transgressions, he passed an order bearing date 24-3-1961 and directed: in respect of the excess over the amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect to modification in section 183 therein, be attracted. Excessive import will, to the extent of the excess, be regarded as prohibited import. Under Section 167 (8) if prohibited goods are imported, such goods shall be liable to confiscation and any person concerned in any such offence shall be liable to a penalty not exceeding three times the value of the goods or not exceeding one thousand rupees. This offence must be deemed to have been committed in the present case, as there was a contravention of the terms of the licence issued under the Import and. Export Control Act. The authorities imposed a. fine of ₹ 16,800/- in lieu of confiscation. As we indicated earlier, there was another offence, namely, misdeclaration in the bill of entry. That is an offence under the Sea Customs Act which has been made punishable Under Section 167 (37) (b ). The penalty prescribed for such misdeclaration would be confiscation of the goods and every one concerned in any such offence shall be liable to a, penalty not exceeding ₹ 1,000/ -. The Customs Authorities levied a fine of ₹ 7 600/- in lieu of. confiscation in respect of this offence. ( 6. ) The short question that falls t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the importer will be liable to administrative penalties-referred to above. The authority to levy and collect the duties is the Customs Collector. ( 8. ) In tile present case there has been a contravention of the licence issued under the Import Control Act. The importation beyond the limits which the licence prescribed will, by reason of the provisions referred to earlier, have to be regarded as prohibited under the Sea Customs Act and the contravention will come within the ambit of section 167 (8) under which the goods illegally imported could be confiscated and monetary penalty imposed on the person concerned in the import. Section 183 says: whenever confiscation is authorised by this Act, the officer adjudging it shall give the owner of the goods an option to pay in lieu of confiscation such fine as the officer thinks fit. This section has been modified in its application to a contravention of the Import and Export Control Act. Under which the. officer adjudging confiscation has a. discretion to allow a redemption of goods by the importer on payment of the fine, but will not be bound to do so as is a case under the Sea Customs Act. ( 9. ) The Authority to adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a case the goods cannot be subjected to import duty. What weighs with me in coming to this conclusion is that even though, where the option is applied there is no confiscation of the goods, the option arises only in the event of the decision to confiscate. If there is no such decision, there is no room for applying in the option. Looking at the matter on principle, the decision to confiscate but to give in lieu of it an option to pay and clear the goods must carry the same consequences in relation to levy of import duty as actual confiscation and vesting of the goods in the Government. ( 12. ) We would, with respect, point out that the imposition Under Section 183 of a redemption fine', as it is sometimes called is in lieu of confiscation resulting in the release of property. For one thing, such a release cannot be regarded as a transfer of property by the Government to the importer after obtaining title to it;, as if the confiscation had become effective. Secondly, the mere fact that there is a decision to confiscate does not necessarily mean that confiscation has been made and vesting of the property Under Section 184 has taken place. The decision to confiscate under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce there has been an importation. If the import is unauthorised or prohibited, the other consequences prescribed by the statute might follow. That will be independent of the liability to duty imposed under the Act. To hold otherwise would lead to an anomaly, namely, that while goods lawfully imported into the country will suffer duty, those smuggled will escape it, the smuggler getting the advantage of not paying the duty, if he were to pay the fine Under Section 183. This anomaly will all the more be apparent in the case of importation of prohibited goods under the Sea customs Act, where the Authority is bound to give an option to the importer to pay fine in lieu of confiscation. That would certainly not have been the intention of the Legislature. ( 16. ) Mr , S. K. L. Ratan appearing for the respondent referred us to the decision in dina v. Collector of Customs That was a case where there was a confiscation of the goods illegally imported and the consequent vesting of the same in the Government. It was held that the goods subsequent to the order of confiscation could be dealt with by the, officer adjudging confiscation in such manner as he considered appropriate. The learned J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, provides for the sale thereof, the surplus sale proceeds if any, after meeting the charges specified therein being made payable to the owners. It is said that there is no corresponding provision, in that section in the case of deficiency of sale proceeds of the goods to cover the duty or the importer to pay anything to the Government. In the view we are taking in this case, namely, that the confiscation will be avoided on payment of the fine (as indeed the respondent proposes to pay) it will be unnecessary to decide this point. ( 18. ) It is argued on behalf of the respondent that the Customs Authorities have no right to impose a duty, as the stag at which they could do SO' was immediately after the bill of entry was filed and not later. This argument is developed by recourse to sections 29-A and 29-B of the Act, and stating that apart from the cases referred to therein, there will be no right 10 levy any duty for a second time. There is a fallacy in this argument. There has been no levy of duty as yet. What has taken place so far is the imposition of administrative punishment by way of adjudging confiscation of the property, for the illegal importation of the goods. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a misleading assumption of authority. In my opinion the answer is clearly no. Such an answer may make more difficult the task of the citizen who is anxious to walk in the narrow way. but that does not justify a different answer being given. '' Lord Norm and in dealing with the view of Denrings, I,. J. , observed: as I understand this statement, the respondents were, in the opinion of the learned Lord Justice;, entitled to say that the Crown was barred by representations made by Mr. thompson and acted on by them from alleging against them a breach of the statutory order, and further, that the respondents were equally entitled to say in a question with the appellant that there had been, no breach. But it is certain that neither a minister nor any subordinate officer of the Crown, can by any conduct or representation bar the Crown from enforcing a statutory prohibition or entitle the subject to maintain that there has been no breach of it. in Secy. of State v. Kasturi Keddi, ILK 26 Mad 268 at p. 27 Rhafhyam Ayyangar, j. , discussing the distinction between a private agent binding his principal and a public agent binding the Government, cited the following passage fr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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