UKCHAND RANKA Vs. ASSISTANT COLLECTOR OF CENTRAL EXCISE

JUDGEMENT

(1.) THESE writ petitions are dealt with together as the petitioner is the same in both and the writ petitions arise out of the same set of facts. In W.P.I 1408 of 1981, the petitioner has prayed for the issue of a writ of certiorified mandamus to quash the order No. 365/81 F.No. 373/1325/76 Cus. II, dated 4-.3-.1981 passed by the third respondent therein and for a direction to it to refund the amount of penalty and fine in a sum of Rs. 3, 000, while, in W.P. No. 11520 of 1981 the petitioner has prayed for the issue of a writ of declaration to the effect that the notification No, 101-Customs, dated 1-.7-.1964 and Notification G.S.R. 37 7/F.No. 2/5/78 Cus. VI dated 3-.1-.1969 are unconstitutional, null and void. The facts giving rise to the writ petitions are as follows :-On 30-.10-.1974, the Customs Preventive Officers, Customs House, Madras, searched the Jain Temple at Pozhal near Red Hills, Madras and recovered 8 silver bars weighing 19.197 Kgs., valued at Rs. 19, 858.92 from a gunny covered tin kept in the locker of the temple. On the gunnuy cover, the name of Ukchand Ranka (the petitioner in these writ petitions) was found written. In the statement given by Shri Kesarimal, Manager of the Jain Temple, on the day of recovery, he stated that the devotees of the temple used to be allowed to keep their things in the lockers and that owning to pressure of work, he was unable to recollect who had left the recovered silver bars in the locker. Since the recovered silver was not covered by any transport voucher or other document, the preventive staff seized the silver bars under a mahazar. Thereafter, the case was transferred to the Superintendent, Gold Control Unit, Madras I Division for taking appropriate further action. By letter dated 2-.12-.1974, Shri Himmatmal Mardia, Advocate appearing for the petitioner, addressed the Customs House, Madras, claiming that the seized silver bars belonged to his client Sri Ukchand Ranka and required the Customs authorities to let him know the provision of law under which the seizure was effected. It was also claimed in that letter that Shri Ukchand Ranka was thebona fideowner of the silver and he had not committed any offence. Later, the counsel who had written the letter, dated 2-.12-.1974 on behalf of the petitioner sent a vakalat on his behalf on 25-.1-.1975, though the vakalat was executed on 21-.1-.1975. The Superintendent, Gold Control Unit, Madras, on 11-.2-.1975 wrote a letter to the counsel requesting the petitioner to appear before him in connection with the seizure of silver bars. In reply to this, on 15-.2-.1975, the counsel for the petitioner states that the petitioner had gone to his native place and requested the fixing of a date after eight weeks. This letter was received on 26-.2-.1975. Inasmuch as the petitioner was not produced and the address of the petitioner was also not furnished to facilitate further investigation, a notice was issued by the Collector of Central Excise, Madras-.34, for the extension of time for a further period of six months under Section 110(2) of the Customs Act, 1962"The Government of India have carefully looked into the facts and records of the case in the light of the submission made in the revision application and at the personal hearing.

(2.) THE Government observe that the order of the Collector is, correct in law. In any case, the contravention of Section 11K of the Customs Act, 1962 has also been admitted by the petitioner. However, having regard to all the facts of the case and considerations urged in the revision application and at the hearing the Government order that (i) the fine in lieu of confiscation be reduced to Rs. 2, 000/-(Rupees two thousand only), (ii) the penalty be reduced to Rs. 1, 000/-('Rupees one thousand only) and consequential refund granted. THE order of the Collector is modified only to that extent and the revision application is rejected otherwise.'It is the correctness of this order that is challenged by the petitioner in W.P. No. 11408 of 1981. Incidentally, the petitioner has questioned the validity of the exercise of powers of revision under Section 130 of the Customs Act, 1962 by the Collector of Central Excise, Madras-.34 by impugning the validity of the notification 101-Customs, dated 1-.7-.1964 and the notification G.S.R. 37, dated 7.F.No. 2/5/68/Cus.VI, dated 3-.1-.1969 in W.P. No. 11520 of 1981.2.It will be convenient to deal with W.P. No. 11520 of 1981 first. In the affidavit filed in support of the challenge to the notifications referred to earlier, it is stated that the vesting of powers of revision in the Collector of Central Excise is absolute and excessive without any safeguard against misuse. THE notification No. 101-Customs dated, 1-.7-.196't was also challenged on the ground that unbridled suo motu powers of revision had been conferred. In paragraph 12 of the common counter affidavit filed by the respondents, it was stated that the power of revision was exercised by virtue of express provision in Section 130 of the Customs Act, 1962 and that was also subject to checks and therefore, the review power cannot be characterised to be arbitrary or unbridled power. It was also further pointed out that consequent upon the creation of an Appellate Tribunal for Customs, Central Excise and Gold Control, Section 130 of the Customs Act had undergone an amendment and the impugned notification had also become redundant and had been rescinded as well and therefore, there is no need to strike down a notification not in force.

(3.) THERE is no dispute that the value of the silver seized was arrived at Rs. 19, 948.82 on the basis of the value prevalent on the date of the seizure. Indeed, it is seen from the files that the seizure report mentions this value. If, according to the petitioner, the value of the seized silver was something different from that given by the Customs Department, then, it is for the petitioner to have placed adequate materials in support thereof. Admittedly, between the date when the silver was purchased by the petitioner on 8-.1-.1971 and the date of seizure viz., 30-.10-.1974, more than three years had elapsed. It is common knowledge that gold and silver have a fluctuating market and the value may change even during the course of the day. Under those circumstances, the petitioner cannot, by merely relying upon a purchase bill three years prior to the date. of the seizure, contend that the value of the silver seized was less than Rs. 15, 000/- and therefore, the provisions under Section 11-J, K and L of the Act cannot be applied to him. THERE is therefore no substance in this contention of the learned counsel for the petitioner.7A. The learned counsel for the petitioner next submitted that the Customs Preventive Officer is not a proper officer for the purpose of conducting a search and seizure and therefore the seizure and the proceedings arising out of the seizure, are not valid. On the other hand, the learned Additional Central Government Standing Counsel invited attention to Section 2(34) and Section 110 of the Act and the Entry against Serial No. 78 with reference to Section 110 in the Madras Supplement to the Customs Manual, First Edition, Page 54, and contended that the officers of the Preventive Department would also be proper officers for the purpose of effecting seizure of goods under Section 110 of the Act.