TMI Blog1975 (7) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... of the goods to Rhodesia. Exports to Rhodesia are prohibited in terms of the Government of India order No. 9/65 dated 17-11-65 issued under Section 3 of the imports Exports (Control) Act. 1947. As it appears that Messrs. Hoare Miller Co. Ltd., have filed the shipping bills under reference in an attempt at exporting the goods to Rhodesia in contravention of the aforesaid prohibition, the goods under reference appear to be liable to confiscation under Section 113(d) of Customs Act and Messrs. Hoare Miller Co. Ltd. is liable to penal action under Section 114 ibid, for attempting to contravene Section 11, Customs Act read with Sec. 3 Imports Exports (Control) Act, 1947. Messrs. Hoare Mills Co. Ltd. are hereby directed to explain in writing and to show cause within a week hereof why the goods should not be confiscated under Section 113(d), Customs Act. 1962 and why penal action should not be taken against them under Section 114, Customs Act, 1962. They should also produce documentary evidence if any in support of their explanation. They may also inform this office in writing if they would like to avail of any personal hearing in this matter. If no reply is recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der published in the Official Gazette, make provisions for prohibiting, restricting or otherwise control-line, in all cases, or in specified classes of cases and subject to such exceptions, if any, as may be made by or under the order; (a) the import, export, carriage coastwise or shipment as ships, stores of goods of any specified description; (b) the bringing into any port or place in India of goods of any specified description intended to be taken out of India without being removed from the ship or conveyance in which they are being carried. (2) All goods to which any order under Sub-section (1) applies shall be deemed to be goods of which the import or export has been prohibited under Section 11 of the Customs Act, 1962 (52 of 1962) and all the prohibitions of that Act shall have effect accordingly. (3) Notwithstanding anything contained in the aforesaid Act, the Central Government may, by order published in the Official Gazette, prohibit, restrict or impose conditions on the clearance, whether for home consumption or for shipment abroad, of any goods or class of goods imported into India. 4. The first contention, therefore, was as mentioned before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 965, the impugned order which was signed by the Chief Controller of Imports and Exports should be deemed to have been passed by the Central Government. In view of the provisions of the General Clauses Act and in view of the said amended Rules I would have been inclined to accept this contention on behalf of the respondents and to hold that the impugned order was really passed by the Central Government and was properly authenticated by the Chief Controller of Imports and Exports. The controversy is not whether the order was properly authenticated but whether the Chief Controller was duly authorised to make the order on behalf of the Central Government. But unfortunately on behalf of the respondents no documents had been produced before me showing the authority of the Chief Controller. My attention was drawn to a decision of the Supreme Court in the case of E. G. Bar-say v. State of Bombay , 1961CriLJ828 and counsel drew my attention to the observations of the Supreme Court in paragraphs 25 and 26 of the said judgment. There the Supreme Court upheld the order as there was evidence that the order made by the Deputy Secretary was on behalf of the Central Government in exercise of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f of the respondents contended that the expression in all cases or in specified classes of cases in the section was wide enough to cover the impugned notification. He urged that the Court should take into consideration the fact that it was the Government policy to ban trade with Rhodesia because of the colour policy followed by that country. Therefore, in order to maintain international peace and harmony this restriction had been imposed and I should construe the provision of the Act liberally 'having regard to the mischief which the Act was intended to avoid and having regard to the purposes contemplated to be fulfilled by the Act. It is in those lights the counsel for the respondent contended that the expression 'all cases or specified classes of cases' should be construed and if such a construction was made it would be sufficient specified description of goods if the goods were merely identified as being goods meant for import or export to a particular country. Counsel in this connection drew my attention to several decisions in aid of the proposition that the Courts should take into consideration the state of affairs before the legislation was passed, and the misc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however, was drawn to sub-section (2) of Section 3 of the Imports and Exports (Control) Act, 1947 which I have noted before. By the said sub-section if there is a prohibition under sub-section (1) of the Imports and Exports (Control) Act, 1947 the legislature requires the said prohibition should be deemed to have been made under Section 11 of the Customs Act, 1962. But can it be said that by that deeming provision it has also to be deemed that when a prohibition is imposed under Sub-section (1) of the Imports and Exports (Control) Act, 1947 the same was also for the purposes of Section 11 of the Customs Act, 1962? The deeming provisions in legislations are occasions when very often pent up legal romance is allowed its full play. But I am of the opinion that while it is improper to boggle one's imagination it is not proper either simply because there is a deeming provision to deem further than what the legislature enjoins the Courts to do. The legislature in this case, in my opinion, does not enjoin that the purposes of Section 11 of the Customs Act, 1962 should be engrafted to an order made under Sub-section (1) of Section 3. Sub-section (1) of Section 11 of the Customs Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r question arose in the case of Karl Ettlinger Co. v Chagandas Co.. . In that case under Section 19 of the Sea Customs Act. 1878 the Government was empowered to prohibit export of specified articles or things. The defendant in that case by a contract made on July 24. 1914 had agreed to supply to the plaintiffs one thousand tons freight at 11s. 6 d. per ton, the material to be carried being manganese, from Bombay to Antwerp, shipment in September. On the 7th September. 1914 the defendants telegraphed to the plaintiffs that owing to force majeure the contract was cancelled. The plaintiffs refused to accept cancellation and sued for damages It was contended that the Government of India's notification of 7th August. 1914 prohibiting export of all materials used for manufacture of ammunition and explosives covered the case and had rendered the contract impossible of performance. It was held that under the Sea Customs Act the. Government was only empowered to prohibit export of specified article and it was not enough to describe different commodities ejusdem generis in vague description. Inasmuch as the notification in that case did not specifically prohibit the export of mangan ..... 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