LAL MOHAMMED Vs. STATE

JUDGEMENT

(1.) THIS second appeal has been filed against an appellate decision of the learned Additional Commissioner, Customs & Taxation dated 26. 3. 55 in a case under sec. 71 of the Marwar Customs Act, 1949.

(2.) WE have heard the learned counsel appearing for the parties and have examined the record as well. The facts of the case are not much in dispute. The appellant took away out of Marwer, animals for grazing purposes, whose export was prohibited, at that time, after obtaining a khali chithi as provided in sec. 71 of the Act. He failed to bring back the animals within Marwar and when questioned took up the plea that they had died in Ahemda-bad. The Collector held the appellant guilty under sec. 71 read with sec. 114 (1) of the Act and imposed a penalty of Rs. 1,000/ -. The appellant went up in appeal before the Additional Commissioner, Taxation who upheld the conviction but altered the same under sec. 114 (1) of the Act. The amount of the fine was however maintained in tact. Hence this second appeal. 3. The learned counsel for the appellant has argued before us that sec. 114 (1) of the Marwar Customs Act has no applicability to the case for the obvious reason that the animals were taken out after a khali chithi was obtained in accordance with law. This has not been denied by the respondent. It has however been contended on his behalf that as the appellant eventually failed to bring back the animals within Marwar, he should be deemed to have intended their export at the very time when he took the animals out and he should be deemed to have committed an offence under sec. 141 (1 ). WE find ourselves unable to subscribe to this view. Item No. 1 of Schedule under sec. 114 relates to import into or export from Marwar of goods, the importation or exportation of which is for the time being prohibited and the export or import is contrary to each prohibition or restriction. In column 4 of the Schedule there is a reference to the section of the Act to which the offence relates and sec. 9 is given in Schedule against that item. Sec. 9 relates to power of the Government to prohibit or restrict importation or exportation of goods. In the present case what the appellant did was not to export in disregard of this prohibition. He obtained a khali chithi for carrying out his animals out of Marwar for grazing purposes. Hence the appellant cannot be deemed to have committed an offence under sec. 114 (1) of the Act. He was bound to bring back the animals within Marwar and as he omitted to do so he shall be deemed to have committed an offence under sec. 71 (35. The learned counsel for the appellant has not seriously challenged this view and has to a certain extent conceded this proposition. Punishment for this offence shall have to be in accordance with that provided in column 4 of the Schedule i. e. penalty calculated at As. 2 per rupee of duty charged on such animals at the lime of return, Export duty shall of course be charged under sec. 71 (4) of the Act. WE would, therefore, allow this appeal in part and direct that the conviction of the appellant shall be altered from sec. 114 (1) to that under sec. 71 (3) of the Marwar Customs Act, 1949. The export duty leviable on the animals plus the penalty calculated at the rate of As. 2 per rupee of the export duty shall be realised from the appellant. Any fine in excess of the above, if realised, shall be refunded.