TMI Blog1952 (5) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... ontroller of Imports, Government of India, an import licence for importing Caustic Soda approximately valued C.I.F. at Rs. 7,20,000 from the United States of America. The goods despatched by the American exporters arrived in the Port of Calcutta in several consignments and were of the aggregate value of Rs. 7,38,779-2-0. The last consignment valued at Rs. 1,10,051-2-0 was landed on or about the 3rd December 1948. In respect of this last consignment a Bill of Entry was submitted to the Customs Authorities on the 1st of February 1949. Owing to certain increase in the market price of Caustic Soda and of the freight charges the actual value of the imported goods exceeded the approximate value of the goods mentioned in the licence by Rs. 18,779-2-0, that is to say, by about 2.6 per cent which according to the petitioner was allowable increase as contemplated by the licence as also by the Notification, dated the 10th November 1947 issued by the Import Trade Controller, New Custom House at Calcutta. The Customs Authorities were of the view that the import of the excess quantity was not permitted by the licence held by the petitioner with the result that the whole quantity of the goods cov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout a valid licence under Section 167(8) of the Sea Customs Act, 1878. By a letter, dated the 24th February 1950 the petitioner showed cause. On the 21st April 1950 the Port Authorities gave notice to the petitioner that for realization of the charges for storage of the goods, the goods would be sold under the provisions of Section 118 read with 119 of the Calcutta Port Act (III of 1890) and the sale was fixed on the 25th April 1950. But at the earnest entreaties of the petitioner's representative the drums were withdrawn from the sale on the 25th April 1950. Thereafter on the 24th of May 1950 the Docks Manager of the Port Authorities notified finally that the 61 drums of Caustic Soda would be disposed of by public auction to be held on the 21st June 1950. Thereafter on the 21st June 1950 the goods were sold in auction in the presence of the petitioner's officer who again made entreaties for postponement of the sale but the officers of the Port Commissioners refused to stay their hands any longer and so the goods were sold on that date. This fact of sale has however been challenged in the petition but there can hardly be any doubt having regard to the facts stated in paragraphs 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave to be collected, arranged, published and sold to the public at a reasonable price. The whole object of the Section is to keep the public informed about the existence of the rules. But it appears to me that non-publication in terms of Section 204 does not affect the validity or operation of the rules. 5.The argument of Mr. Sen to the effect that the order of confiscation is in excess of the powers of the Assistant Collector does not appear to have any substance. It appears from paragraph 189 of the Sea Customs Manual that in exercise of the power conferred by the proviso to Section 182 of the Sea Customs Act the Central Board of Revenue has authorised the Assistant Collectors-in-Charge of Appraisement and the Assistant Collectors-in-Charge of Preventive Service to exercise the powers contained in clause (a) of Section 182. The said paragraph is as follows : Section 182. Delegation of powers under section 182. 189. In pursuance of the proviso to Section 182 of the Sea Customs Act, 1878 (VIII of 1878) and in supersession of the Board's Notifications specified in the annexed schedule, the Central Board of Revenue directs that the Assistant Collectors-in-Charge of Appraising ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Imports with regard to the matter under consideration and the reply that he received from the Joint Chief Controller on 7th April 1951 was to the following effect :— "Sir, With reference to your letter No. Pre-Audit Obj. 129 of 18th January 1949, dated 8th December 1950 on the above subject, I write to inform you that the Chief Controller of Imports will have no objection to the clearance of the goods on payment of nominal penalty at your discretion. Yours faithfully, Sd/- Jt. Chief Controller of Imports." 8.This letter of 7th April makes it clear that the matter of imposition of the fine was left to the discretion of the Assistant Collector for Appraisement and it was in exercise of his own discretion that he assessed the figure at Rs. 200. Thus there is no force in the contention of Mr. Sen. 9.It has been submitted by Mr. Sen that the Customs Authorities acted mala fide in ordering confiscation and in adjudging the fine in respect of the excess quantity of the goods. To examine the force of this contention it is necessary to make a note of the course of events as evidenced by the correspondence that passed between the petitioner and the Customs Authorities. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fference. In reply to that letter of the Assistant Collector, the petitioner wrote a letter on the 28th January 1949 requesting that only the excess quantity of the goods might be detained and the balance released to the petitioner, and in compliance with such request the goods were so released and only 61 drums covering the excess quantity were detained. Subsequently after about a lapse of 4 months the petitioner sent a fresh licence to cover the difference on or about the 13th April 1949. But no explanation was submitted as to why there was this excess in the value to the extent of Rs. 18,779-2-0. On the 19th May 1949 the Customs Authorities wrote to the petitioner intimating that the licence sent could not be accepted to cover the goods as the same had been issued after the date of shipment of the consignment, and production of a fresh valid licence was insisted upon for releasing the goods. On the 5th of July 1949 the petitioner wrote to the Collector of Customs inter alia to the following effect :— "Although the I.T.C. and your appraising department had no objection in our utilisation of the excess amount (as per Customs copy of the licence) your pre-audit department raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the steps that should be taken with regard to this excess quantity of goods of the petitioner. It was pointed out in this letter that strict observance of the rules would cause hardship to the petitioner. On the 11th January 1951 the petitioner again asked for expeditious disposal of the matter but obviously as the Assistant Collector had not received any reply from the Chief Controller he kept silent over the matter. On the 7th April 1951 the Joint Chief Controller wrote back to the Assistant Collector intimating that the Chief Controller had no objection to the clearance of the goods on payment of nominal penalty to be imposed at the discretion of the Assistant Collector. After receiving this reply the Assistant Collector by his order, dated the 23rd April 1951 confiscated the goods and imposed a fine of Rs. 200 in lieu of confiscation under Section 183 of the Sea Customs Act and further directed that this sum was to be paid within four months from date. On the 15th May 1951 the petitioner through his Solicitor demanded justice but the Assistant Collector by his letter of 23rd May pointed out and maintained that the detention and order imposing the fine were justified in the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner to the Collector of Customs that the Port Commissioners had expressed their intention at or about that time to dispose of the goods of the petitioner lying with them. The relevant extract from that letter may be set out hereunder :— "As the matter has been delayed considerably for reasons absolutely beyond our control, we have been issued a Notice by the Port Commissioners to the effect that unless the 61 drums detained by you are cleared immediately the same will be put to sale. " 15.On the 7th September 1949 on being pressed by the Port Authorities to arrange for an early clearance of the goods the petitioner wrote to the Traffic Manager of the Port Commissioners that the matter of obtaining release of the goods had been taken up in right earnest with the Customs Authorities and it was hoped that the matter would be settled within a short time. It is further stated in this letter that the petitioner appreciated that the drums were occupying valuable dock place but they were helpless in the matter as Customs Permit for clearance had been withheld. The letter of the petitioner to the Collector written on the 18th October 1949 also gives indication that the Port Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort Authorities were threatening to put up the goods for sale and they were even willing to grant some concession to the petitioner if early clearance of the goods would be arranged by the petitioner. This affidavit of Mr. Biswas also states very positively in paragraphs 8, 12 and 17 that the sale took place on the 21st June 1950. It appears from the annexures to the affidavit in reply of the petitioner that certain particulars were asked for subsequent to the issue of this Rule by the petitioner's Advocate and in reply thereto the Advocate for the Respondent No. 5 stated that the price realised in respect of the goods was Rs. 640 and the highest bidder was one S. Guha. It is further stated in this reply that the sale proceeds were adjusted against the Commissioner's charges of Rs. 7591-7-0 due on the 61 drums. There is a supporting affidavit in reply by one Jadu Gopal Goswami who is an assistant in the petitioner's firm. It is stated in this affidavit that no auction of the said 61 drums as advertised was held on the 21st June 1950 and that he had made an inquiry from the auctioneers Banarasi Das and Sons and was told by them that the Caustic Soda advertised for sale could not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confiscation and fine in lieu thereof was not justified in the facts and circumstances stated above, this order cannot be sustained. 19.Mr. Sen also submitted that this order purported to levy wharf rent and other charges which it was not competent for the Customs Authorities to do and so this portion of the order also is bad but I do not think that this order has that effect. It does not purport to levy any wharfage or other charges but simply states that if such charges are found to be leviable in future the petitioner will pay the fine of Rs. 200 in addition to the duty and such charges payable by him. 20.A point was made by Mr. G.K. Mitter, the learned Counsel for Respondents Nos. 3 and 4, that this application should have been made on the Original Side of this Court. But it is clear that as the goods in respect of which order for release and delivery has been asked for are all outside the Ordinary Original Jurisdiction of this Court, this application could not be moved on the Original Side. [See AIR 1947 Cal. 307. P.K. Banerjee v. Simmonds and AIR 1949 P. C. 307 — Meenakshi Mills Ltd. v. Provincial Textile Commissioner]. 21.A further point was raised that the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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