Judgment :- In my judgment the petitioner is entitled to the relief claimed by him as the order of the Collector of Central Excise impugned in this writ petition was a clear usurpation of jurisdiction. 2.The following facts are not in dispute: The petitioner is a partner of Messrs. Kesarla Audinarayaniah Setty Son & Co., Chickpet, Bangalore who are merchants carrying on business in bullion and jewellery. On or about 6th December 1955 three Arabs, who formed part of the entourage of the King of Saudi Arabia, who was on a visit to this country and was at that date at Bangalore, entered the shop of the petitioner and offered for sale a quantity of gold bars which they brought. The market price of gold at the period for the type offered by these Arabs was about Rs. 92 per tola. The price quoted was Rs. 91 per tola but the petitioner offered Rs. 90 per tola and the deal was concluded. The gold offered consisted of 10 bars weighing 10 tolas each and the price payable therefore came to Rs. 9000. Out of this Rs. 4000 was agreed to be received in cash and the balance the Arabs agreed to take in the form of jewels in the shop of the petitioner. While these negotiations were proceeding in the petitioner's shop, some officers of the Excise Department entered the petitioner's premises and seized the gold as well as Rs. 4000 which was on the table. As a result of the examination of the Arabs who brought in the gold, the Customs and Excise officers were satisfied that the gold brought in by them was smuggled into this country in contravention of the Import Control Regulations and was, therefore, contraband. 3.On these facts a notice was issued to the petitioner on 17-12-1955 to show cause why action should not be taken against him for violation of the provisions of the Sea Customs Act and in particular for contravention of Section 167(8) of that Act. That provision runs in these terms : In the notice reference was also made to the contravention of the Foreign Exchange Regulations Act, 1947. But as the terms of this provision merely incorporate those of the Sea Customs Act, they do not need separate mention. 4.The petitioner submitted his explanation in the course of which he stated that Messrs. Kesarla Audinarayanaiah Setty Son & Co. But as the terms of this provision merely incorporate those of the Sea Customs Act, they do not need separate mention. 4.The petitioner submitted his explanation in the course of which he stated that Messrs. Kesarla Audinarayanaiah Setty Son & Co. of which he is the partnerbona-fidebelieved that the Arabs who brought the gold were lawfully in possession of it, that they were not aware that the gold was smuggled, that the price paid by them was a clear indication of theirbona fidesand that, therefore, they prayed that the gold seized from them might be returned to them or in the alternative that at least Rs. 4000 might be returned. This explanation was considered by the Collector of Central Excise, who passed an order dated 22-3-1956, the order which is impugned in this writ petition, directing the confiscation of the 100 tolas of gold and levying a penalty of Rs. 5, 000 on the petitioner and also directing that Rs. 4000 which had been seized in the petitioner's shop might be 'released' to Shri Abdulla as already ordered. I shall extract portions of this order instead of myself setting out the reasons why this penalty was imposed. "I cannot accept the plea of the advocate and the offender that the provisions of the Act quoted in the show cause notice [Sea Customs Act, Section 167(8) and Foreign Exchange Regulations Act 1947] have not been contravened by him. The offender (Petitioner) by his own admission has been dealing in gold for some considerable time and was fully aware of the prohibition on the importation of gold into India except with a permit from the Reserve Bank of India. The transaction related to the purchase of 10 pieces of gold which weighed 100 tolas.........I cannot accept his statement that he purchases the gold as a normal business transaction, as his knowledge that the gold was imported gold leads me to believe that he was prepared to assist in the disposal of this illicit gold which has been imported into India and thus aided and abetted the final importation of this illicit gold. From the written statement given by the party I am also not satisfied that he exercised all due diligence to prevent the commission of the offence...... The sale was therefore fully established and the act of aiding and abetting illicit importation of the gold was complete. From the written statement given by the party I am also not satisfied that he exercised all due diligence to prevent the commission of the offence...... The sale was therefore fully established and the act of aiding and abetting illicit importation of the gold was complete. I, therefore, find Shri Sethurajan guilty of the charges framed against him.' 5.I shall now summarise the findings of fact of this officer on the basis of which the contravention of section 167(8) of the Sea Customs Act was taken to have been established. (1) The Arabs imported gold contrary to the provisions of section 19 of the Sea Customs Act and Section 8 of the Foreign Exchange Regulation Act. The gold therefore had been smuggled into India. (2) The petitioner had not been able to establish, that he had purchased the goldbona fidein ignorance of its having been smuggled. In other words, the petitioner knew at the time of his purchase that he was buying smuggled gold. On these findings the Collector of Central Excise held the petitioner to be guilty of an offence under section 167(8) of the Sea Customs Act, and levied the penalty of Rs. 5000 on him. 6.It would be seen that under the third column of Section 167 (8) two penalties are incurred, viz; (1) the liability of the smuggled goods to confiscation whoever be the owner of it and (2) a penalty on the person concerned in such offence. Mr. Rangaswami Ayyangar learned counsel for the petitioner is not challenging the confiscation of the gold bars because on the finding that it was smuggled, that is, that it was imported into India contrary to the Sea Customs Act or the Foreign Exchange Regulation Act, the article was liable to confiscation. He, however, contended that on the facts found there was no jurisdiction in the Collector of Central Excise to levy any penalty on the petitioner. In my judgment this contention is well-founded. The ground upon which the Officer held the petitioner guilty of an offence under the Sea Customs Act was that he had 'aided or abetted' the commission of the offence of illegal importation. In my judgment this contention is well-founded. The ground upon which the Officer held the petitioner guilty of an offence under the Sea Customs Act was that he had 'aided or abetted' the commission of the offence of illegal importation. It is not the case for the respondent that the petitioner induced, aided or abetted the Arabs to effect the illegal importation, of gold; he was not an 'accessory before the fact' which is the meaning of the expression 'abetted' used by the Collector of Excise in his order. The petitioner no doubt purchased the gold and on the finding of the officer, knowing that it was smuggled. But that was long after the gold was smuggled and the petitioner was no party to the smuggling of the gold. It was therefore a misnomer or misapplication of the words to term the act of the petitioner in purchasing the gold that he had 'aided or abetted' the illegal importation. 7.Learned counsel for the respondent however urged that the petitioner was 'a person concerned in the offence' within the meaning of the words in the third column of section 167(8). The offence here spoken of, relevant to the present case, is what is set out in the first part of column (1) of the sub-section namely the importation of goods contrary to the prohibition or restriction imposed by Chapter IV of the Act'. I am unable to agree in the contention that a person who is not 'a party' to or 'concerned in' any act of importation can be said to be 'a person concerned in the, offence' by reason of his purchasing contraband goods. The latter is no offence under S. 167(8) of the Sea Customs Act. The jurisdiction of the Collector to impose the penalty was attracted only in the event of the person being 'concerned in the importation' and as the petitioner in this case would not by any stretch of language be held to be such a person, the order imposing the penalty was wholly without jurisdiction and has, therefore, to be set aside. 8.There are two or three matters to which I must refer before concluding the judgment. The first is in relation to the offence constituted by the other portions of the first column of section 167(8) commencing with the words 'If any such goods be found in any, package etc. 8.There are two or three matters to which I must refer before concluding the judgment. The first is in relation to the offence constituted by the other portions of the first column of section 167(8) commencing with the words 'If any such goods be found in any, package etc. 'It is not the case of the respondent that the case of the petitioner fell under any of these provisions. 9.The second matter arises out of the fact that the petitioner availed himself of the remedy provided by the Sea Customs Act and has preferred an appeal to the Central Board of Revenue, New Delhi. Learned counsel for the respondent urged that the pendency of this appeal before an authority outside the territory of the State was a circumstance which would preclude the jurisdiction of this Court under Art. 226 of the Constitution. The argument was that if that appeal were allowed, there would be no necessity for the writ and if it were dismissed, the order of the Collector would have merged in the order of the Central Board of Revenue with the result that the petitioner would have to canvass the propriety and legality of the appellate order which was by an authority outside the territorial jurisdiction of this Court, which it was not permitted by Art. 226. If I were satisfied regarding the jurisdiction, of the Collector of Central Excise to levy penalty, I would have upheld this legal objection of the respondent but I am satisfied that the order now impugned was (on the facts found by the Collector which are binding upon me) entirely beyond the jurisdiction conferred on him by the relevant statutory provision. In my opinion, therefore, this is a case which falls within the decision of the Bench in Writ Appeal No. 120 of 1956.10.Lastly, I am unable to understand the legal basis upon which Rs. 4000 which was seized from the Arab has been directed to be returned to him. The findings of the Collector are that the Arab who produced the gold had smuggled it into this country and that was the basis upon which the order for confiscation of the gold was made and which I have sustained Rs. 4000 represented the sale price of that gold which by the forfeiture has now become the property of the State. If so the sale becomes avoided and the right to Rs. 4000 represented the sale price of that gold which by the forfeiture has now become the property of the State. If so the sale becomes avoided and the right to Rs. 4000 ought to re-vest in the petitioner who admittedly parted with it. How the smuggler becomes entitled to Rs. 4000 from the Customs department, when the sale by him of the smuggled gold becomes rescinded by the paramount title of the State by the order of forfeiture, I am not able to follow. This portion of the order is also without jurisdiction and the proper order to have passed was to have directed the return of Rs. 4000 to the petitioner. The rule is accordingly made absolute and the impugned order is set aside. There will however be no order as to costs.