THIN YEN Vs. SECYOF STATE

JUDGEMENT

(1.) This suit has been set down for the trial of the issue whether this Court has jurisdiction to entertain it. The following are the facts: In December 1934 two consignments of goods arrived in Calcutta by sea per S.S. "Hosang" for the plaintiff. A person named Achan was the plaintiff's authorized clearing agent. One consignment consisted of 66 packages, and I will call it the "A" consignment, the other consignment consisted of 35 packages and I will call it the "B" consignment. There was a bill of entry in respect of the "A" consignment which showed that the packages bore no marks; it also showed that there were no silk goods among the contents. On 14 December 1934 seven packages were seized by the Customs House Authorities of which one was subsequently released. As regards the remaining six the Customs House Authorities assert that they were seized in the public street outside the Customs House, whither the plaintiff's agent had caused them to be removed. The plaintiff's case is that they were still within the precincts of the Customs House, awaiting examination. "When the packages were examined they were found to contain dutiable silk goods of considerable value. The packages were admittedly part of the "B" consignment, and the Customs House Authorities suggest that what the plaintiff's agent was doing was attempting to remove them without paying duty, under cover of the bill of entry relating to the "B" consignment, the contents of which were either not dutiable at all, or only dutiable to a trifling extent.

(2.) Subsequently the plaintiff received a notice to show cause why the goods in the packages which had been seized should not be confiscated and a penalty imposed on him under Section 167 (37)(c) and (38), Sea Customs Act, 1878. An enquiry followed, and on 11 July 1935 the second defendant in his capacity as Collector of Customs passed an order for confiscation of the goods under Section 167(37) of the Act subject to a redemption penalty of Rs. 3500, and imposed a penalty of Rs. 4000 under Section 167(38). Section 167 creates certain offences against the Act, and provides maximum punishments for committing them. Under item (37)(c) of the Schedule, if it be found, when any goods are entered at, or brought to be passed through, a Customs House, either for importation or exportation, that the contents of such packages have been misstated in regard to sort, quality, quantity, or value, such packages together with the whole of the goods contained therein shall be liable to confiscation. Under item 38, if when any goods are passed by tale or by package, any omission or misdescription thereof tending to injure the revenue be discovered, the person guilty of such omission or misdescription shall be liable to a penalty not exceeding ten times the amount of the duty which might have been lost. It is not disputed that the order was one which under Section 182 of the Act the Collector of Customs had power to make. That Section is a part of Chap. 17 of the Act, which is headed "Procedure relating to offences, appeals etc." Section 188, which is part of the same Chapter, gives a right of appeal to the Chief Customs Authority to any person deeming himself aggrieved by any decision or order passed, by an officer of Customs under the Act. The plaintiff appealed under this Section to the Central Board of Revenue; but on 2nd October 1935 the Board dismissed the appeal.

(3.) With regard to these orders the plaintiff states that they were altogether void, in-valid, illegal and inoperative, and not binding on him. No offence under Section 167(37) or (38), Sea Customs Act, had been committed. Alternatively no offence under such Secs.or either of them had been committed by the plaintiff. Prior to the passing of the-Collector's order the plaintiff had not been charged with any offence under either o? such Sections, nor had. he been called upon to meet or answer any such charges. Further there was no, or alternatively no proper, adjudication arrived at in manner provided by the Sea Customs Act: and the proceedings were not conducted in accordance with the principles of natural justice. Under Section 191 of the Act the Governor. General in Council may, on the application of any person aggrieved by any decision or order passed under the Act by an officer of Customs or Chief Customs Authority, and from which no appeal lies, revise or modify such decision or order. The plaintiff petitioned the Governor-General in Council under this Section, and on 2nd March 1936 the Governor-General in Council modified the Collector's decision by setting aside the penalty, although he upheld the order for confiscation. The Governor-General's order stated that he was satisfied that the goods were removed from the Customs House with the intention of defrauding the revenue. He was of opinion however that the facts did not fall under item 37 or 38 of Section 167, and that the imposition of a penalty under item 38 was therefore not justified. In upholding the order for confiscation he stated that; it should have been passed under Section 167(36), which provided that if after any goods have been landed, and before they have been passed through the Customs House, the owner removes them or attempts to remove them, with the intention of defrauding the revenue, such goods shall be liable to confiscation.