TMI Blog1972 (5) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore liable to confiscation under section 113(d) of the Customs Act, 1962, and the petitioner was liable to penalty under section 114 of the Customs Act, 1962, and (2) the particulars given in the shipping bill filed in support of the goods to Customs House were not correct and as such the goods were liable to confiscation under section 113 (i) of the Customs Act, 1962, and the petitioner was liable to penalty under section 114 of the Customs Act, 1962. Counsel for the respondent contended that goods from the very beginning were, in view of the facts alleged in the show cause notice, meant and intended to be sent by the petitioner to Bunderabbas, Iran. But E.P.I. Form was filed alleging that the goods were being sent to Afghanistan in transit to Karachi. Therefore, it was contended that there was a direct contravention of section 12(1) of the Foreign Exchange Regulation Act, 1947, because there was no declaration that the amount representing the full export value would be paid in the prescribed manner. It was further contended that the prescribed manner meant manner prescribed by the Rules. It was submitted that the forms which had been prescribed under Rule 3 of the Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount representing-- (i) the full export value of the goods; or (ii) If the full export value of the goods is not ascertainable at the time of export the value which the exporter, having regard to the prevailing market conditions, expects to receive on the sale of the goods in the course of international trade, and affirms in the said declaration that the full export value of the goods (whether ascertainable at the time of export or not) has been, or will within the prescribed period be, paid in the prescribed manner. Before its amendment in 1969, section 12(1) did not require that particulars given in the declaration must be true or correct in all respects and the requirement of the said section, therefore, would have been complied even if the particulars given in the declaration were incorrect. Section 27 (2) (a) of the Foreign Exchange Regulation Act, 1947, empowered the Central Government to prescribe the forms and circumstances of their use for the purpose of the Act by rules made under the Act Rule 3 of the Foreign Exchange Regulation Rules, 1952, provided that the declaration under section 12(1) of the said Act should be in one of the forms set out in the First ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffences alleged did not fall within Section 23A. It was held further that before a case could be held to fall within the scope of section 23A it should be shown that there had been contravention of the restrictions imposed by section 12(1) of the Act. The requirement of section 12(1) was satisfied if the stipulated declaration in the form prescribed by Rule 3 of the Foreign Exchange Regulation Rules, 1952, was furnished and was also supported by evidence prescribed in Rule 5. It was further held that the scheme of the Act made it clear that so far as the Customs authorities were concerned all that they had to see was that no goods were exported without furnishing the declaration prescribed under section 12(1). Once that stage was passed the rest of the matter was left in the hands of the Reserve Bank and the Director of Enforcement. In the case of (2) Becker Gray Company (1930) Ltd. and others v. The Union of India and another A.I.R. (1971) S.C. 116, the Supreme Court observed at page 117 of the report as follows :-- Mr. Bindra, however, urged that, in these cases, there was the distinctive feature that the Board also found that the declarations were further incorrect inasmuch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either dutiable nor prohibited. Section 2(14) defines dutiable goods as goods which are chargeable to duty and on which duty has not been paid. In the instant case, the entire amount of the duty had been paid and after payment thereof the goods had been exported. Furthermore the show cause notice does not also allege that the goods were dutiable goods or that the duty had not been paid. The next question, is whether the goods were prohibited goods within the meaning of section 2(33) of the Customs Act, 1962, As the only condition subject to which the goods could be exported, namely filing a declaration under section 12(1) of the Foreign Exchange Regulation Act, 1947 had been complied with, and there was no other prohibition on the export of the said goods apart from section 12(1) of the Foreign Exchange Regulation Act, 1947, the goods were not prohibited goods in terms of section 2(33) of the Customs Act, 1962. Apart from the items No. 8 and 9 of annexure F of the show cause notice, the other particulars in relation to which it has been alleged that there had been a misdeclaration related to the country of final destination, name of exporter and the port of discharge of these goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f by the interim order the proceedings were not stopped by virtue of that interim order an invalid proceeding does not become valid one. 2. For the reasons aforesaid, the show cause notice is without jurisdiction and proceedings taken thereunder are liable to be quashed. In the premises, the show cause notice dated 1st of December, 1965, is hereby quashed and set aside and all proceedings so far taken thereunder are also quashed and set aside. In the premises the appeal is allowed. Banerjee, J. passed his order in this case following his judgment dated 8th of September, 1969, in matter No. 454 of 1967 (6) (Messrs. M. Abhechand Co. v. S. K. Srivastava Ors.) For the reasons mentioned hereinbefore, we are unable to accept the conclusion reached by Banerjee, J. in the said judgment. The order of Banerjee, J. in the instant case, is therefore, set aside and there will be order quashing the show cause notice dated 1st of December, 1965, and all proceedings taken thereunder. Respondents are restrained from proceedings taken thereunder. Respondents are restrained from proceeding further with the said show cause notice. Let writs in the nature of certiorari and mandamus issue accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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