JUTE INVESTMENT CO LTD Vs. S K SRIVASTAVA

JUDGEMENT

(1.) THIS appeal arises out of an order and judgment of Banerjee, J. , dated 8th of september, 1969 in an application under article 226 of the Constitution by the petitioner challenging the show cause notice dated 1st of December, 1965 issued by the Additional Collector of Customs of Calcutta. The petitioner is a partnership firm and carries on business of exporters and importers. On or about 2nd December, 1965, the petitioner was served with the said show cause notice and was called upon to show cause why penal action should not be taken against it under section 114 of the Customs act, 1962. The show cause notice was based on two allegations, namely (1)contravention of section 12 (1) of the foreign Exchange Regulation Act, 1947, and the goods were therefore liable to confiscation under section 113 (d) of the Customs Act, 1962, and the petitioner was liable to penalty under section 114 of the Customs Act, 1962, and (2) the particulars given in the shipping bill filed in support of the goads to Customs House were not correct and as such the goods were liable to confiscation under section 113 (i) of the customs Act, 1962, and the petitioner was liable to penalty under section 114 of the Customs Act, 1962. Counsel for the respondent contended that goods from the very beginning were, in view of the facts alleged in the show cause notice, meant and intended to be sent by the petitioner to Blunderbuss, Iran. But E. P. I. Form was filed alleging that the goods were being sent to Afghanistan in transit to Karachi. Therefore, it was contended that there was a direct contravention of section 12 (1)of the Foreign Exchange Regulation act, 1947, because there was no declaration that the amount representing the full export value would be paid in "the prescribed manner. " It was further contended that "the prescribed manner" meant manner prescribed by the rules. It was submitted that the forms which had been prescribed under Rule 3 of the Rules said, how with regard to any particular country and in what manner the full export value had to be repatriated. In the premises, counsel for the respondent, urged that the truth or validity of the amount of exported value that had been declared, was not the question here but the question involved here was how and in what manner such value had to be repatriated or otherwise adjusted against such exports. It was, therefore, urged, it came within the mischief of section 12 (1) of the Foreign Exchange Regulations Act, 1947. It was alleged that the manner in which the true exported value had to be brought had been contravened by the petitioner by not filing the prescribed form, Therefore, section 113 (d) of the Customs Act, 1962, was attracted because such declaration which did not follow the prescribed manner was prohibited under section 12 (1) of the Foreign Exchange Regulation act, 1947. It has to be remembered that section 12 (1) before its amendment in 1969 did not require that the declaration should be in any prescribed form. Section 12 (1) of the foreign Exchange Regulation Act, 1947, provided as follows before its amendment by Act 40 of 1969 :

(2.) AS mentioned hereinbefore, there was a second allegation in the show cause notice. It was alleged that the particular given in the shipping bill were not correct and as such the goods were liable to confiscation under section 113 (1) of the Customs Act, 1962. Section 113 (1)of the Customs Act, 1962, provides as follows :-

(3.) FOR the reasons aforesaid, the show cause notice is without jurisdiction and proceedings taken thereunder are liable to be quashed. In the premises the show cause notice dated 1st of december, 1965, is hereby quashed and set aside and all proceedings so far taken thereunder are also quashed and set aside. In the premises the appeal is allowed. Banerjee, J. passed his order in this case following his judgment dated 8th of September, 1969, in matter no. 454 of 1967 (6) (Messrs. M. Abhechand and co. v. S. K. Srivastava and Ors.)For the reasons mentioned hereinbefore, we are unable to accept the conclusion reached by Banerjee, J. in the said judgment. The order of Banerjee, JJ. in the instant case, is therefore, set aside and there will be order quashing the show cause notice dated 1st of december, 1965, and all proceedings taken thereunder. Respondents are restrained from proceedings taken thereunder. Respondents are restrained from proceeding further with the said show cause notice. Let writs in the nature of certiorari and mandamus issue accordingly. The rule nisi issued under article 226 of the Constitution is made absolute to the extent indicated above. In the facts and circumstances of this case there will be no order as to costs.