GAURISHANKAR Vs. UNION OF INDIA

JUDGEMENT

(1.) A common question has been raised in these two writ petitions (Civil Writ Nos. 1389 and 1390 of 1961), and indeed the arguments were addressed only in Civil Writ No. 1389 of 1961 with the result that both these petitions would be disposed of by one judgment. The question raised is whether on the finding of the departmental authorities a personal penalty of Rs. 5,000/-imposed by the Collector of Central Excise and Land Customs, New Delhi is legally sustainable Under Section 167 (8) of the Sea Customs Act. The other points sought to be raised in the writ petition have not been urged at the time of arguments because as conceded by the learned Counsel for the petitioners they are no longer open to be canvassed, the legal position having since been authoritatively settled.

(2.) THE short contention raised in support of the challenge to the penalty is. that the Collector of Central Excise and Land Customs has not found that Messrs Hanuman Sashay and Brothers were concerned in the offence of importation or exportation of goods which is prohibited or restricted by or under Chapter IV of the Sea Customs Act and that, therefore, there was no legal sanction for imposing the penalty within Section 167 (8 ). The counsel has also made a reference to the order of the Central Board of Revenue dated 8-6-1960 on appeal from the order of the Collector dated 14-11-1958 and to the order of the Government of India dated 17/26-7-1961 on revision and it has been emphasised that even these orders do not disclose a finding contemplated by Section 167 (8) which alone can justify personal penalty.

(3.) IN support of the legal position urged, the petitioner's learned Counsel has, to begin with, relied on a Bench decision of this Court in Balbir Singh v. Collector of Central Excise and Land Customs New Delhi, ( ). There, it was held that Under Section 167 (8) of the Sea Customs Act the penalty can only be imposed if the person subjected to the penalty has been concerned in the offence of importation or exportation of goods which is for the time being prohibited or restricted. In the case before the Bench it was not denied that there was no such finding on the record, with the result that the penalty of Rs. 3,000/- imposed was held unsustainable. The counsel very frankly also drew my attention to a Full Bench decision of this. Court in Union of India v. Jagdish Singh, (FB), the ratio of which, as is apparent from the head-note, is-that when dealing with the question of imposition of penalty it is not necessary for the Collector to say in express words that he is satisfied that a> particular person has been concerned in the importation of articles which had been confiscated. It. may here be mentioned that a learned Single Judge-of this Court construed the decision in Balbir Singh's case, to mean that there must be an express-Ending that the person on whom the penalty is to be imposed was concerned with the importation or exportation of the prohibited goods. The Full Bench while construing that Bench decision noticed that it had been conceded there without arguments-that there was no finding by the Collector that the person proceeded against had been concerned is the offence of importation or exportation of prohibited goods. The counsel has in this connection contended that the view of a learned Single Judge-of this Court in Des Raj v. The Collector etc. Civil Writ No. 1621 of 1960 (Punj), that the Full Bench overruled the decision in Balbir Singh's case, , is not quite correct because the Full Bench merely distinguished the earlier Bench decision holding' that there was not even an implied finding about the person, on whom the penalty was imposed, to have been concerned in the offence of importation or exportation of prohibited goods. Reliance has also been placed on behalf of the petitioner on a decision by Bishan Narain, J. in Ishwar Dayal" v. Union of India Civil Writ No. 771 of i960 (Punj), where also in the absence of a rinding by the Collector, even by implication, that the person oar whom penalty was imposed had imported the gold in question, the order of penalty was quashed. The learned single Judge there is it that the proposition was well-settled in this Court that in the absence of a finding that the petitioner had imported the gold in dispute no penalty could be imposed. The counsel has conceded that the finding can be implied and need not be express but he has urged that there is no such implied finding in the case in hand.