TMI Blog1970 (3) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... ead with Section 23A of the Foreign Exchange Regulation Act as well as Section 167 (37) of the Sea Customs Act. He, therefore, confiscated the goods in respect of which Shipping Bills had been presented at the Customs House, but gave an Option to the Respondent to redeem the goods on payment of a fine of ₹ 2 lakhs, and also imposed a personal penalty of ₹ 35,000. After paying the sum of ₹ 235,000 as aforesaid, under protest, the Respondent got the goods released and thereupon challenged the impugned order by sta-tutory appeal and revis852 ion, as stated at the outset. The Government of India having dismissed the application for revision on 21-9-64, the Respondent brought his application under Article 226 of the Constitution on 14-5-65 (pp. 4-16 of the Paper-book), to quash the impugned orders, asking for a refund of the sum of ₹ 2,35,000 which the Respondent had paid under protest, as fine in lieu of confiscation and personal penalty. From a reading of the impugned order at pp. 119-20, it is evident that the Addl. Collector relied upon both Section 167 (8) and (37) in imposing the order of confiscation and penalty. 3. The judgment of the Court below was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) does not require a declaration. A declaration, which is in contravention of the Rules or the Forms prescribed under the Rules, may be penalised under Section 23 of the Act, but such contravention will not attract the provisions of the Sea Customs Act. Under Section 23-A of the Act, only a breach of restrictions imposed under Section 12 (1) of the Act is to be deemed to be a contravention of the restrictions imposed by Section 19 of the Sea Customs Act. An incorrect declaration in contravention of the Rules made under Section 27 of the Act is not to be deemed a contravention of the restriction imposed by Section 19 of the Sea Customs Act. It is therefore quite clear fruit in these cases the imposition of the penalties under Section 167 (8) of the Sea Customs Act was totally unjustified. 7. The above observations of the Supreme Court answer the arguments advanced by Mr. Kar that- (a) Since the prescribed Form requires the exporter to state the real value of the goods exported, a misstatement under that column would constitute an offence under the Sea Customs Act, read with Section 12 (1) of the Foreign Exchange Act; and that (b) Since Section 12 (1) required the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon the observations in Craies on Statute Law, 6th Edn., at p. 305, where the learned Author refers to the decision in R. v. Vine, (1875) 10 QB 195. In that case, the majority of the Court applied the provisions of Section 14 of the Wine and Beerhouse Amendment Act, 1870 which enacted that every person convicted of felony shall be for ever disqualified from selling spirits by retail to a person who had been convicted before the Act came into force but was still holding a licence to sell spirits, on the ground that it would advance the object of the statute, which was to protect the public against the abuse of inns being kept by persons of bad character. There are, however, various reasons why the aforesaid decision cannot be applied to the case before us. (a) In Vine's case, (1875) 10 QB 195 the ground of disqualification had already been incurred by conviction. But in the instant case, if retrospective operation is to be given to the Ordinance, the Respondent would be penalised for not doing something which the law then existing, as interpreted by the Supreme Court, did not require him to do. It is only, in the declarations furnished after the 14th November, 1969 that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No doubt, the bar under Article 20(1) of the Constitution extends only to 'conviction' by a Court of law, but the question before us is not one of a constitutional bar against conviction under an ex post facto law, but that of construction of a change in a penal statute, which is wider than the immunity conferred by Article 20(1). It is an age-old proposition that a penal statute or amendment thereof should not be construed to be retrospective, in the absence of express words to that effect because it manifestly shocks one's sense of justice that an Act, legal at the time of doing it, should be made unlawful by some new enactment. [Midland Ry v. Pye, (1861) 142 ER 419 (424); R. v. Griffiths, (1891) 2 QB 145 (148); Moon v. Durden, (1848) 2 Ex 22; Butchers, Hide Co. v. Seacome, (1913) 2 KB 401.] 12. We have already said that in Vine's case, (1875) 10 QB 195 the law imposed only a disqualification and not a penalty. The distinction between the two has also been pointed out in the recent English case of Re A Solicitor's Clerk, (1957) 3 All ER 617 (019), in these words:-- It enables an order to be made disqualifying a person from acting as a solicitor' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oard had observed (p. 140) that the Respondent had committed a separate offence under Section 167 (37), which is independent of Section 167 (8) and that the Revisional authority simply rejected the revision application (p. 136). 18. In order to appreciate this argument, it is necessary to refer to the provisions in Section 167 (8) and (37). Section 167. The offences mentioned in the first column of the following Schedule shall be punishable to the extent mentioned in the third column of the same with reference to such offences respectively: (8) If any goods, the importation of which is for the time being prohibited or restricted by or under Chap. IV of this Act, be imported into or exported from India contrary to such prohibition or restriction......... such goodsshall beliable to confiscation ; any person con. cerned in any such offence shall be liable to a penalty not ex- ceeding three times the value of tho goods or not exceeding one thousand rupees. (37) If it be found, when any goods are entered at, or brought to bo passed through, a custom-house, either for im- portation or exportation, that......... Section of this Acttowhichoffence has re-ference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rect. 22. If these two findings stand, an offence under Section 167 (37), read with Section 137, is established. It was, however, contended on behalf of the Respondent that misstatement cannot be an offence under Section .167 (37) (a), unless there is a substantive provision requiring the exporter to make a correct statement. But though that requirement cannot be found in Section 137 itself, Clause (a) of that section refers to Section 29, namely, that the Bill must contain 'such particulars in addition to those specified in Section 29 as may ..... be prescribed'. The requirement to state the correct value in the Bill has therefore to be drawn from Section 29, and 'real value', for this purpose, is defined in Section 30. The relevant portions of the provisions in these two sections are: 29. Owner to declare real value, etc. of goods in bill of entry or shipping bill. --On the importation into, or exportation from, any customs-port of any goods, whether liable to duty or not, the owner of such goods shall, in his bill of entry or shipping bill, as the case may be, state the real value, quantity and description of such goods to the best of his knowledge and be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued thereunder , but the second charge was that- We have also been told that the declaration of a lower value as a full value on the Shipping Bill is a misdeclaration of value attracting penal action under Section 167 (37) of the Sea Customs Act. 24. It is quite evident that though Section 29 or 137 of the Sea Customs Act was not specifically mentioned, the Respondent was told that by understating the value, he had also committed an offence under Section 167 (37), which must be read with Sections 29 and 137 of the Sea Customs Act and that his defence as well as the proceeding for adjudication proceeded on this twofold basis. It is, therefore, not correct to say that the petitioner was charged only with a violation of Section 12 (1) of the Foreign Exchange Act, and this contention o the Respondent is rejected. 25. III. We are not to deduce the conclusions from the findings so far arrived at, in order to determine the relief, if any, which the Respondent could get in his petition under Article 226. 26. The order at pp. 119-120 clearly shows that - (a) The order of confiscation was made both under Section 167 (8) and 167 (37); (b) The option to redeem the goods o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . When all is said, Mr. Kar contended, the Court below was not justified in directing the Appellants to refund any amount realised from the Respondent, in a proceeding under Article 226 of the Constitution. 33. The claim for refund arises out of the finding of this Court that the imposition and recovery of the penalty in question was without jurisdiction since there was no violation of Section 12 (1) of the Foreign Exchange Act out of which the offence under Suction 167 (8) of the Sea Customs Act arose. Since the jurisdiction of the Appellants to do so was statutory, a duty to refund arises as soon as it is held that the impugned order was ultra vires. Such a claim in a proceeding for mandamus has been allowed in England in R. v. Income-tax Special Purposes Commrs., (1888) 21 QBD 313 and in numerous cases in India e.g., Sales Tax Officer v. Kanhaiyalal, ; State of Orissa v. Chakobhai, (maintainabilily not questioned); State of Kerala v. Aluminium Industries Ltd., (1965) 10 STC 680 (692) (SC). On this point, the observations of the Supreme Court in the case of Union of India v. Narasimhalu, , though obiter, are illuminating. In this case, the claim had been made by still, but a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the fundamental right of a citizen guaranteed by Article 19(1)(g), and such restriction, therefore, can only be justified under authority of a law, under Clause (6) of Article 10. Where the imposition or collection is ultra vires, the fundamental right of the citizen under Article 19(1)(g) is infringed: Mohammad Yasin v. Town Area Committee, : Ganapati v. State of Ajmer, . The claim for refund, again is not the only relief claimed in the proceeding before us; hence, the contention of Mr. Kar, in this behalf must be rejected. 38. V. Mr. Kar finally contended that though the Addl. Collector had founded his order upon both items (8) and (37) of Section 107, the appellate authority, -- the Board. -- had relied upon item (37) only so that the Respondent could not get any relief on the footing that the impugned order was made also under item (8). This is not factually true, since the appellate authority dismissed the appeal in toto (p. 141) and merely stated that the offence under Section 167 (37) was an offence 'independent' of Section 167 (8). That the Board, too, relied upon both items 8 and 37 of Section 167, is apparent from the following words in para 6 of the Board&# ..... X X X X Extracts X X X X X X X X Extracts X X X X
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