TMI Blog1970 (3) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... to be inadmissible in evidence. As regards to penalty it is a matter of no moment as the order of the Collector passed on 9th August, 1959, clearly showed that the confiscation had been ordered under Section 167(8) of the Sea Customs Act, read with Section 19 of the Act as made applicable by Section 23A of the Foreign Exchange Regulation Act and the personal penalty was imposed under these provisions of law. Thus if the gold smuggled weighed 692 tolas of which the value would not be less than rupees one lakh a penalty of ₹ 50,000/- was certainly not out of proportion to the gravity of the offence No substance in the argument that the appellant could not be said to be a person concerned in the smuggling of gold even if it were to be held that he had paid ₹ 16,000/- to the other three persons for bringing the gold into India. If the Collector was free to proceed on the basis of the statements recorded which went to show that gold of the value of rupees one lakh was smuggled into India at the instance of and for the benefit of the appellant who had paid out a large sum of money for the purpose, it is difficult to see how he could be said to be a person not intereste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicable by Section 3(2) of the Imports and Exports Control Act, 1947 and Section 167(8) of the Sea Customs Act, 1878, read with Section 19 of the Act as made applicable by Section 23A of Foreign Exchange Regulation Act, 1947. All the four persons were required to show cause as to why the gold and the camel should not be confiscated and further penal action be not taken against them. They were also asked to indicate in their written explanations as to whether they wished to be heard in person or through a representative before the case was adjudicated so that a date could be fixed for the hearing of the case, if considered necessary. The appellant's name does not find a place in the concluding paragraph of this notice (although those of the other three appear there) to the effect that if no cause was shown against the action proposed to be taken within ten days from the date of the receipt of the memo or if the named persons "did not appear when the case was posted for hearing it would be decided ex parte on merits of the facts already on record". There can however be no doubt ..... and indeed there is no dispute ...... that the written notice was addressed to all the four persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontrary to the rules of natural justice. 4.The Collector of Central Excise affirmed an affidavit in opposition wherein he made a definite allegation that he had received no reply from the appellant to the show cause memo, dated August 19, 1958. Further according to him he had while disposing of the case taken note of the statements made by the two Mohammads and Ghulam Rasool. All these statements had been made before the Customs authorities. He also referred to the said statements to show that it was the appellant who had advanced a sum of Rs. 16,000/- for the smuggling of the gold. 5.The learned single Judge of the High Court turned down the contention that the order of the Collector had been passed without affording the appellant an opportunity of being heard. He was inclined to agree with the submission made on behalf of the Union of India that the omission of the appellant's name in the last paragraph of the show cause notice was merely accidental and that it did not in any way prejudice him. He held that the appellant had been given an opportunity of showing cause against the action proposed and had not availed himself of the same. He was also of the view that the document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r taking the view that the power to impose a fine under Section 167(8) was not limited to the sum of Rs. 1,000/-. In the result the Division Bench accepted the appeal of the Union of India and restored the penalty imposed by the Collector. 7.Our attention was also drawn to a recent decision of this Court in A.K. Kripak v. Union of India - 1969 (2) SCC 340, where some of the rules of natural justice were formulated in Paragraph 20 of the judgment. One of these is the well known principle of audi alteram partem and it was argued that an ex parte hearing without notice violated this rule. In our opinion this rule can have no application to the facts of this case where the appellant was asked not only to send a written reply but to inform the Collector whether he wished to be heard in person or through a representative. If no reply was given or no intimation was sent to the Collector that a personal hearing was desired, the Collector would be justified in thinking that the persons notified did not desire to appear before him when the case was to be considered and could not be blamed if he were to proceed on the material before him on the basis of the allegations in the show cause not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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