TMI Blog1961 (4) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... of these consignments. The Collector of Customs, Baroda, ordered the said goods to be confiscated under Section 1678 of the Act; and in lieu of confiscation an option was given to the respondent to pay a fine of Rs. 22,918 and Rs. 16,000 in respect of the two consignments. Further, on the ground that the respondent had understated the value of the goods imported under the first consignment, the appellant imposed a penalty of Rs. 500 under Section 167(37)(c) of the Act. Against the said order, the respondent preferred two appeals to the Central Board of Revenue and the said Board, by its order dated January 15, 1954, set aside the orders of the appellant and instead imposed a penalty of Rs. 22,918 in regard to the first consignment and Rs. 16,000 in regard to the other under Section 167(8) of the Act; but the penalty of Rs. 500 was however maintained. In revision the Government of India modified the order of the Central Board of Revenue by cancelling the penalty of Rs. 500 and in other respects it confirmed the order of the said Board. The respondent cleared the goods on executing a bond in favour of the appellant. As the respondent did not pay the penalty, the appellant, acting und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Authority only could enforce the said order and not the Collector of Customs. 4. To appreciate the rival contentions and to provide a satisfactory solution to the problem presented it is necessary to read the relevant provisions of the Act, not only to understand the scheme of the Act but also to construe the provisions of Section 193 thereof in the light of the scheme disclosed by the said provisions. It is one of the well established rules of construction that "if the words of a statute are in themselves precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the Legislature". It is equally well settled principle of construction that "Where alternative constructions are equally open that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating; and that alternative is to be rejected which will introduce uncertainly, friction or confusion into the working of the system". With this background and having regard to the aforesaid two principles of construction, let us at the outset scru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfiscation in whole or in part; it also enables the said authority, with the consent of the owner of the goods ordered to be confiscated to commute the order of confiscation to a penalty not exceeding the value of such goods. Section 190A gives a power of revision to the Chief Customs Authority against an order of any officer of Customs passed under the Act and enables it to pass such order thereon as it thinks fit. Then comes the crucial Section 193. As the argument turns upon the provisions of this section, it would be convenient to read the entire section at this stage. Section 193 : "When a penalty or increased rate of duty is adjudged against any person under this Act by any officer of Customs, such officer, if such penalty or increased rate be not paid, may levy the same by sale of any goods of the said person which may be in his charge or in the charge of any other officer of Customs. When an officer of Customs who has adjudged a penalty or increased rate of duty against any person under this Act is unable to realise the unpaid amount thereof from such goods, such officer may notify in writing to any Magistrate within the local limits of whose jurisdiction such, person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifferent officers of Customs who are empowered to adjudge a question of penalty, but the Chief Customs Authority is not included in that list. Indeed in Section 182(c) the Chief Customs Authority is empowered to nominate the subordinate officers of Customs to adjudge questions within certain pecuniary limits. That apart, Section 3(a) of the Act defines "Chief Customs Authority" to mean the Central Board of Revenue. The Central Board of Revenue is a statutory authority and, though it can only function through officers appointed to the said Board, it is inappropriate to call it an officer of Customs. In this situation, when under the provisions of the Act there is no scope for realization of any penalty imposed for the first time by the Chief Customs Authority, it would be more in accord with the scheme of the Act to construe the word "an officer of Customs" as an officer of the Customs who is authorised to adjudicate in the first instance on the question of confiscation, increased rate of duty or penalty under Section 182 of the Act. This construction, it is said, would lead to an anomaly of a penalty and at the same time withholding from it a procedure to enforce its collection. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it should have obtained the consent of the party whose goods were confiscated. The High Court in its order observed that there was nothing before it to show that the consent of the owner of the goods ordered to be confiscated was not obtained before the order of confiscation was commuted to one of penalty by the Chief Customs Authority. If that be taken as a finding the question of the legal effect of an order of commutation would arise for consideration. Would such an order be deemed to be made in substitution of that of an original authority? Could it be said that the commuted sentence shall be deemed in law a sentence imposed by the original tribunal? But these questions need not detain us, as we are not satisfied on the material placed before us that the condition of consent has been fulfilled in this case. The High Court in effect drew a presumption in favour of the regular performance of an official act. But this presumption is only optional. In a case like this when the validity of an order depends upon the fulfilment of a condition, the party relying upon the presumption should at least show that the order on the case of it is regular and is in conformity with the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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