TMI Blog1970 (10) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... a licence granted under the Imports and Exports (Control) Act, 1947. Appeal dismissed. - 2003 of 1966 - - - Dated:- 23-10-1970 - J.C. Shah, K.S. Hegde and A.N. Grover, JJ. [Judgment per : Shah, J.]. - On March 31, 1959 the Ministry of Commerce and Industry, Govt. of India, granted to the respondents a licence permitting them to import from West Germany certain machinery described therein of the maximum C.I.F. value of Rs. 45,000/-. Condition No. 1 of the licence provided that : "The application is accepted and import licence is hereby granted having quantity and value as the limiting factors and is not valid for clearance if the actual value of any item exceeds the C.I.F. value indicated in the licence by more than 5%." The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A Single Judge of the Calcutta High Court dismissed the petition, but in appeal under the Letters Patent the High Court reversed the decision and issued a writ of certiorari quashing the order dated March 17, 1962. The Additional Collector of Customs, Calcutta, has appealed to this Court with certificate granted by the High Court. 4. The only question which falls to be determined is whether for breach of a condition of the licence penalty may be imposed under Section 5 of the Imports and Exports (Control) Act, 1947, read with the Sea Customs Act, 1878. 5. The relevant statutory provisions may first be noticed. Under Section 167 of the Sea Customs Act, 1878, the offences mentioned in the first column of the Schedule are punishable to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... controlling 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 or 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 19 of the Sea Customs Act, 1878, and all the provisions of that Act shall have effect accordingly, except that Section 183 thereof shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving been utilised for importation of the said goods. By clause 5 certain conditions could be imposed by the Licensing Authority issuing a licence. 8. It may be recalled that one of the conditions of the licence issued by the respondent was that the value of any item shall not exceed the C.I.F. value indicated in the licence by more than 5%. It was the case of the Customs authorities that the real value of the machinery imported exceeded the declared value, and on that account the respondents had infringed the conditions of the licence. In East India Commercial Company Ltd., Calcutta v. Collector of Customs, Calcutta, 1963-3 SCR 338 = 1983 E.L.T. 1342 this Court held that Section 167 clause 8 of the Sea Customs Act, 1878, read with Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition of a licence, it is open to the authorities to direct prosecution, but no order confiscating goods and imposing penalty in lieu thereof could be made. The order of confiscation could only be made under Section 167 clause 8 of the Sea Customs Act, 1878 : in terms clause 8 of Section 167 provides for confiscation of the goods importation or exportation of which is for the time being prohibited or restricted by or under Chapter IV of the Sea Customs Act, 1878. The notification of which the contravention is said to have been made, is not issued under Section 19 of the Sea Customs Act, but under the Imports and Exports (Control) Act, 1947. It has not been urged before us, and rightly, that penalty of confiscation is incurred under the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
