TMI Blog1975 (6) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 4, 1964 the Joint Chief Controller of Imports and Exports issued a Trade Notice whereby exports of some varieties of Mica were prohibited and some varieties were allowed to be exported subject to a minimum F.O.B. price per k. g. as specified in the Trade Notice. The export of Mica of varieties other than those specified in the Trade Notice could be exported without any restriction as to the minimum f.o.b. prices. No. 6 Black Spotted Loose Mica Splittings of the 1st and 2nd qualities were not specified in the Trade Notice. The same could be exported without any restriction as to the minimum f.o.b. price. The export of the several cases of No. 6 Black Spotted Loose Mica Splittings of the 1st and 2nd qualities were authorised by the Joint Chief Controller of Exports, Calcutta, by endorsements made on the respective shipping bills. At the instance of the Appraiser. Customs House. Calcutta, some of the cases of the goods selected at random were checked before permitting export. It was found that the goods so selected were in conformity with the declaration made in the shipping bills, namely, that they were 'No. 6 Black Spotted Loose Mica Splittings' of the 1st and 2nd qua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of Section 113(d) read with Section 114(i) of the Customs Act the goods were liable to be confiscated and the company was asked to show cause why penal action should not be taken against the petitioner. 4. In the show-cause notice two charges were, therefore, levelled against the company. The first charge was contravention of Foreign Exchange Regulation Act, 1947. The second charge was that the prohibited goods had been exported without a valid order permitting the export and as such there was contravention of the relevant provisions of Section 113 read with Section 114 of the Customs Act, 1962. 5. So far as contravention of Section 12 (1) of the Foreign Exchange Regulation Act is concerned, in view of the decision of the Supreme Court in ( Union of India v. Shreeram Durgaprasad ) [1969]2SCR727 , the learned trial Judge has held that the notice is without jurisdiction. No arguments have been advanced before us disputing this decision of Sabyasachi Mukharji. J. The contentions before us were confined to Sections 113, 114 and other relevant sections of the Customs Act, 1962. 6. Mr. Bajoria, appearing for the respondent company, has drawn our attention to Section 167 (8) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t provisions of the Sea Customs Act 1878 with these of the Customs Act of 1962, Mr. Bajoria has argued that the latter Act makes a distinction between attempt to import or export and the actual importation or exportation. The scheme of the old Act is continued in the new Act so far as the import aspect is concerned, but while dealing with export, actual exportation which was provided for in the old Act was omitted in the new Act. The intention to leave out actual exportation is clear from the opening words of Section 113 33 contrasted with those of Section 111 read with the definition of Export goods'' in Section 2(19). Section 111(d) speaks of goods imported or attempted to be imported. Section 113(d) merely speaks of goods attempted to be exported and deliberately drops out goods actually exported. A comparison of the two sections, according to the learned counsel, leads to the conclusion that the words attempt to export contemplate a case in which exportation has not taken place. In other words, it contemplates a case of unsuccessful attempt--an attempt which has not resulted in actual exportation. A successful attempt cannot be brought within the scope of Section 113 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stence of the goods at the time the show-cause notice is issued or the adjudication is made. (ii) The offence contemplated in Section 114 is an offence which arises under Section 113 and which are the ingredients of Section 114. (iii) Section 113 applies to export goods as defined in Section 2(19). An offence is committed under Section 113(d) before the export. (iv) it is not the intention of the Act to pursue the goods after export. The Act contemplates punishment of the offender for the offence committed before the export. From this point of view the omission of actual exportation in the new Act is understandable. A liability to confiscation must be distinguished from physical possibility of confiscation. Goods already exported cannot be physically confiscated. (v) If the offence is committed before the export, the actual export of the goods cannot wipe out the offence. According to the Act the offence under Section 113(d) can be committed only when the goods are within the country. This is in accord with the definition of export good in Section 2(19). Therefore, if the offence of attempt to export is complete when the goods are within the country, subsequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e exporter cannot be punished for attempt to export? Obviously answer is in the negative. 13. For all the reasons aforesaid we are of the view that an attempt to export is punishable under Section 114 irrespective of the fact that exportation has already taken place. Moreover the notice in the instant case is a notice both under Section 113(d) as well as under Section 113(i), which is as follows:-- Section 113, Confiscation of goods at tempted to be improperly exported, etc.-- The following export goods shall be liable to confiscation:-- ** ** ** (i) any dutiable or prohibited goods which do not correspond in any material particular with the entry made under this Act......... 14. The case of the Customs Authorities in the instant appeal is that the respondent has committed an offence under Section 113(i) also. And in view of what we have stated above, it seems to us that it is possible to bring this case within Section 113(i). 15. Mr. Bajoria then invited our attention to Section 51 of the Customs Act, 1962. Section 51 is in the following terms:-- Clearance of goods for exportation.--Where the proper Officer is satisfied that any goods entered for ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly one-tenths of the electricity actually used. In an action to recover the balance of nine-tenths the Privy Council rejected a plea of estoppel. Lord Maugham delivering the judgment of the Privy Council has observed: .........Where, as here, the statute imposes a duty of a positive kind, not avoidable by the performance of any formality, for the doing of the very act which the plaintiff seeks to do, it is not open to the defendant to set up an estoppel to prevent it. This conclusion must follow from the circumstances that an estoppel is only a rule of evidence which, in certain special circumstances, can be invoked by a party to an action; it cannot, therefore, avail, in such a case to release the plaintiff from an obligation to obey such a Statute, nor can it enable the defendant to escape from a statutory obligation of such a kind on his Article. It is immaterial whether the obligation if onerous or otherwise to the party suing. The duty of each party is to obey the law. 19. It may be that the Customs Authorities failed to perform their statutory duties by allowing goods not covered by a valid licence to be exported relying on the respondents representations as to qua ..... X X X X Extracts X X X X X X X X Extracts X X X X
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