JUDGMENT V.P. Gopalan Nambiyar, J. 1. This writ petition is to quash Ext. P-20 notice issued to the petitioner firm by the Assistant Collector of Customs. By the said notice the petitioner was called upon to show cause why the goods sought to be exported by them should not be confiscated under section 113 (d) of the Customs Act, 1962, read with section 23-A of the Foreign Exchange Regulation Act, 1947 and section 114 (1) of the Customs Act, 1962. After the admission of this writ petition on 14th November 1972, by an interim order passed on 17th November, 1972 after hearing counsel, the petitioner was directed to deposit Rs. 10,000 in this court as security against the liability, if any, which may ultimately attach to the petitioner in respect of the proceedings taken against him. On producing evidence of such deposit before the respondents, the respondents were directed to permit the petitioner to export the goods subject to acceptance of the bond that the petitioner had already furnished. I have been informed that in pursuance of this order the export of the goods has already been effected. The legality of Ext. P-20 notice would now remain for consideration in regard to the refund of the deposit of Rs. 10,000 now lying in this court. 2. The petitioner is an exporter of rosewood. He had purchased under Ext. P-1 9769 kilograms of a particular variety of rosewood for export. The variety purchased was "Pueraria Javanica". The purchase was, as seen from Ext. P-1, at Rs. 3.30 per kilogram. After the purchase, the petitioner invited offers for the sale of the goods (vide Exts. P-1 to P-5). Ext. P-6 dated 22nd September 1972 is one of the replies to these notices asking for samples of "Pueraria Javanica" by second class Airmail. The price quoted was $ 2,150 per ton c.i.f. Singapore. This was replied to by Ext. P-7 by the petitioner offering $ 2,300 per ton. Exts. P-10, P-11, P-13, and P-14 all represent offers and counter-offers that passed between the various intending purchasers and the petitioner. Ext. P-13 was accepted by Ext. P-14 agreeing to purchase the goods at $ 2,250 per ton. Ext. P-15 (no date is seen in that document) is the confirmatory letter which confirms the purchase for the said price. Exts. P-10, P-11, P-13, and P-14 all represent offers and counter-offers that passed between the various intending purchasers and the petitioner. Ext. P-13 was accepted by Ext. P-14 agreeing to purchase the goods at $ 2,250 per ton. Ext. P-15 (no date is seen in that document) is the confirmatory letter which confirms the purchase for the said price. In pursuance of this, it is the petitioner's case that the necessary shipping bills were made out by their agents and submitted for shipment of the goods on 11th October 1972. In paragraph 10 of the petition the petitioner has alleged that the bills were returned with the endorsement that "the price is very low, substantiate". The petitioner re-submitted the papers with his reply dated 11th October 1972. But they were again returned on 13th October, 1972 with the endorsement that "there are current shipments at higher prices". The petitioner then met the Assistant Collector of Customs on 14th October 1972 and personally explained the position. The goods were transported to the Port Warehouse in Willingdon Island and kept ready for export by a ship sailing on, 12th November 1972. The Customs authorities checked the quality and quantity of the goods. Thereafter the petitioner was served with Ext. P-20 show cause notice against confiscation of the goods. The relevant portion of Ext. P-20 is as follows:- "The investigations done by the Department showed that though the import price of Pueraria Javanica seeds has come down in Singapore, there were fresh contracts obtained by other exporters at prices of $ 3,000 to 3,250 per L/ton c.i.f. The exporters' explanation that the declared price of $ 2,250 per L/ton is fair, is therefore, not correct. Giving due weightage to the fluctuations in price, a price of $ 3,000 per L/ton c.i.f. is considered as fair for the goods in question. The difference in price is $ 750 per L/ton involving an undervaluation of $ 3,750 on the whole consignment, equivalent to Rs. 9,517.00 approximately. Under section 12 (I) of the Foreign Exchange Regulation Act, 1947 (as amended), the exporters, are required to declare the full value of the goods in the shipping bill and G.R. form. This has not been done by the exporters in this case and the declared value, therefore, does not represent the full export value as required under section 12 (I) of the Foreign Exchange Regulation Act. This has not been done by the exporters in this case and the declared value, therefore, does not represent the full export value as required under section 12 (I) of the Foreign Exchange Regulation Act. Attempt of export of the goods is, therefore, in contravention of the Government of India. Ministry of Finance, G.S.R. Notification No. 2641 dated, 14th November 1969 issued under section 12 (I) of the Foreign Exchange Regulation Act and the goods are liable to confiscation under section 113(d) of the Customs Act, 1962 read with section 23A of the F.E.R.A. The exporters are also liable to penal action under section 114 (I) of the Customs Act, 1962. The exporters M/s Johny Brothers, Cochin-11, are, therefore, called upon to submit their written explanation in the matter within seven days from the date of receipt of this notice and to show cause as to why the goods should not be confiscated and penal action taken against them as stated above. The written representation should be accompanied by the originals or certified copies of all the documentary evidence on which they may rely in support thereof and forwarded to the Collector of Customs and Central Excise, Custom House, Cochin-3. The exporters are further requested to state whether they would like to avail of the opportunity to be heard in person before the case is adjudicated. If no mention is made about this in the written reply to the show cause notice, it will be presumed that a personal hearing is not required. If they fail to submit their written representation in time or appear before the Adjudicating Officer when the case is fixed for hearing, the case may be decided on the basis of the evidence on record without further notice to them." The petitioner has immediately come up to this court to quash Ext. P-20. 3. Counsel appearing for the respondents raised a preliminary objection that the writ petition is premature at this stage and the petitioner can well make his representations before the Assistant Collector in answer to Ext. P-20 notice. I am not disposed of to entertain this objection. In three days after the admission of this writ petition, as noticed, by an order passed on C.M.P. No. 14705 of 1972, after hearing counsel for the respondents (as I have been informed), the petitioner was asked to deposit Rs. P-20 notice. I am not disposed of to entertain this objection. In three days after the admission of this writ petition, as noticed, by an order passed on C.M.P. No. 14705 of 1972, after hearing counsel for the respondents (as I have been informed), the petitioner was asked to deposit Rs. 10,000 and in pursuance of this, export of the goods has been effected. It would be unfair at this stage to drive the petitioner to seek an adjudication in regard to the legality of Ext. P-20 notice before the Customs authorities in the first instance and go through the entire cycle of proceedings to challenge the validity of the said notice. The writ petition has been pending here for over two years; and as I will endeavour to show, it is doubtful if an effective adjudication can be had now, as proposed by Ext. P-20. I therefore overrule the preliminary objection. 4. Section 11 (1) of the Customs Act, 1962 may be read: "11. (1) If the Central Government is satisfied that it is necessary so to do for any of the purposes specified in sub-section (2), it may, by notification in the Official Gazette, prohibit either absolutely or subject to such conditions (to be fulfilled before or after clearance) as may be specified in the notification, the import or export of goods of any specified description. ******* and sections 12 (1) and 12 (5) and 23-A of the Foreign Exchange Regulation Act, 1947 read: "12. (1) The Central Government may, by notification in the Official Gazette, prohibit the taking or sending out by land, sea, or air (hereafter in this section referred to as export) of any goods or class of goods specified in the notification from India directly or indirectly to any place so specified unless a declaration supported by such evidence as may be prescribed or so specified, is furnished by the exporter to the prescribed authority that the amount representing the full export value of the goods has been, or will, within the prescribed period, be paid in the prescribed manner. * * * * * 12. * * * * * 12. (5) Where in relation to any such goods the value as stated in the invoice is less than the amount which in the opinion of the Reserve Bank represents the full export value of those goods, the Reserve Bank may issue an order requiring the person holding the shipping documents to retain possession thereof until such time as the exporter of the goods has made arrangements for the Reserve Bank or a person authorised by the Reserve Bank to receive on behalf of the exporter payment in the prescribed manner of an amount which represents in the opinion of the Reserve Bank the full export value of the goods. * * * * 23-A. Without prejudice to the provisions of section 23 or to any other provision contained in this Act, the restrictions imposed by subsections (1) and (2) of section 8, sub-section (1) of section 12 and clause (a) of sub-section (1) of section 13 shall be deemed to have been imposed under section 11 of the Customs Act, 1962, and all the provisions of that Act shall have effect accordingly." When the provisions stood thus, the scope of the above provisions and the powers of the Customs authorities in handling a transaction of export came up for consideration before the Supreme Court in Union of India v. Shreeram Durga Prasad (P) Ltd., A.I.R. 1970 S.C. 1597. It was ruled by the majority that the requirement of section 12 (1) of the Foreign Exchange Regulations Act is satisfied if the stipulated declaration supported by the evidence prescribed or specified is furnished. It was further observed: "Admittedly the stipulated declarations in the prescribed forms have been furnished. The evidence specified have also been given. Therefore prima facie there was no contravention of section 12 (1). What is said against the respondents is that the invoice price mentioned by them in the declarations did not represent the full export value; hence the declarations given by them are invalid declarations which means that the concerned goods were exported without furnishing the declaration required by section 12 (1). It is not possible to accept this argument. The declarations given do satisfy the requirements of section 12 (1) though they do not correctly furnish all the information asked for in the form. Such declarations cannot be considered as non est. It is not possible to accept this argument. The declarations given do satisfy the requirements of section 12 (1) though they do not correctly furnish all the information asked for in the form. Such declarations cannot be considered as non est. The informations called for in the prescribed forms cannot be considered as restrictions imposed by section 12 (1). They are merely informations called for the proper exercise of the powers under the Act. Many of them do not relate to the restrictions imposed by section 12 (1). Neither section 12 (1) nor any other provision in the Act empower the rule-making authority to add to the restrictions imposed by section 12 (1). For finding out the restrictions imposed by section 12 (1) we have only to look to that section. The requirement of that section is satisfied if the stipulated declaration supported by the evidence prescribed or specified is furnished. The contravention complained of in this case is really the contravention of section 12 (2) and Rule 5. The former is punishable under section 23 and the latter under section 23 read with section 22". I may extract also paragraph 38 of the judgment which is as follows: "There are two facets in every export, one relating to the goods exported and the other relating to the Foreign Exchange earned as a result of the export. Broadly speaking, the former aspect is dealt with by the Customs authorities and the latter either by the Reserve Bank or by the Director of Enforcement. The price of goods exported has to be mentioned in the invoice. But the Reserve Bank has power to examine whether the price mentioned in the invoice is correct. Section 12 (5) provides that where in relation to any goods exported the value as stated in the invoice is less than the amount which in the opinion of the Reserve Bank represents the full export value of those goods, the Reserve Bank may issue an order requiring the person holding the shipping documents to retain possession thereof until such time as the exporter of the goods has made arrangements for the Reserve Bank or a person authorised by the Reserve Bank to receive on behalf of the exporter payment in the prescribed manner of an amount which represents in the opinion of the Reserve Bank the full export value of the goods. Sub-section (6) of section 12 says that for the purpose of ensuring compliance with the provisions of that section and any orders or directions made thereunder, the Reserve Bank may require any person making any export of goods to which a notification under sub-section (1) applies to exhibit contracts with his foreign buyer or other evidence to show that the full amount payable by the said buyer in respect of the goods have been or will within the prescribed period be paid the prescribed manner. These provisions go to indicate that so far as the value of the goods exported is concerned the matter is left primarily in the hands of the Reserve Bank, and the Customs authorities are not burdened with that work. This aspect becomes relevant in ascertaining the true scope of section 12 (1). If we bear in mind the scheme of the Act, it is clear that so far as the Customs authorities are concerned all that they have to see is that no goods are exported without furnishing the declaration prescribed under section 12 (1). Once that stage is passed the rest of the matter is left in the hands of the Reserve Bank and the Director of Enforcement. As I understand the above judgment, it has explained the two aspects involved in a transaction of export of goods, viz., the one relating to foreign exchange and the other relating to export. While the former is a matter for the Reserve Bank to take care of under section 12 (5) of the Act, the latter has been provided for to be dealt with by the Customs authorities under section 12 (1) of the Foreign Exchange Regulation Act, 1947. It was, therefore, held by the Supreme Court in the above case that the mere fact that the valuation furnished was low, or did not appear to be correct, was no ground to hold that there was a contravention of section 12 (1) of the Act. The above decision was followed in a later ruling in Becker Gray and Company Ltd. and others v. The Union of India and another, A.I.R. 1971 S.C. 116. 5. The above decision was followed in a later ruling in Becker Gray and Company Ltd. and others v. The Union of India and another, A.I.R. 1971 S.C. 116. 5. Since the Supreme Court decisions section 12 (1) of the Foreign Exchange Regulation Act, 1947, has been amended to read as follows: "12 (1) The Central Government may, by notification in the Official Gazette, prohibit the taking or sending out by land, sea or air (hereafter in this section referred to as export) of all goods or of any goods or class of goods specified in the notification from India directly or indirectly to any place so specified unless the exporter furnishes to the prescribed authority a declaration in the prescribed form supported by such evidence as may be prescribed or so specified and true in all material particulars which, among others, shall include the amount representing (i) the full export value of the goods; or (ii) if the full export value of the goods is not ascertainable at the time of export, the value which the exporter, having regard to the prevailing market conditions, expects to receive on the sale of the goods in the course of international trade, and affirms in the said declaration that the full export value of the goods (whether ascertainable at the time of export or not) has been, or will within the prescribed period be paid in the prescribed manner." Counsel for the respondents contended that after the amendment the decision of the Supreme Court will have no application. I am unable to see how this conclusion follows. As far as I can see the amendment has only Introduced the additional requirements that the declaration must be true in all material particulars which, among others, shall include the full export value of the goods. The principle laid down by the decision that the inaccuracy of the declaration under section 12 (1) of the Foreign Exchange Regulation Act is not a restriction deemed to have been imposed under section 11 (1) of the Customs Act, as provided in section 23A of the Foreign Exchange Regulation Act, 1947, remains unaffected. That principle being there, I am unable to see how the amendment effected to section 12 (1) can make any difference in the position. 6. Counsel for the respondents relied on section 113(d) of the Customs Act. That principle being there, I am unable to see how the amendment effected to section 12 (1) can make any difference in the position. 6. Counsel for the respondents relied on section 113(d) of the Customs Act. That section, I am afraid, would not help the department. The section reads: "113. The following export goods shall be liable to confiscation: ******* (d) any goods attempted to be exported or brought within the limits of any Customs area for the purpose of being exported contrary to any prohibition imposed by or under this Act or any other law for the time being in force; * * * * *� In order to take powers under the section, a prohibition imposed by or under the Customs Act or under any other law for the time being in force must be established. I am unable to see any contravention of a prohibition imposed either by the Customs Act or by the Foreign Exchange Regulation Act or by any other law. 7. I may just notice another aspect of the matter. The position after the amendment effected by Act 40 of 1969 to section 12 (1) of the Foreign Exchange Regulation Act, 1947, itself was considered by the Madras High Court in M/s Sreenivas and Company, Madras-3 v. Union of India represented by the Collector of Customs, Customs House, Madras, (1973) 2 M.L.J. 173 and M/s Zubaida Leather Company, 15-Kumarappa Chetty Street, Madras and others v. Union of India, represented by the Collector of Customs, Customs House, Madras, (1973) 2 M.L.J. 173 . A learned Judge of that court held that the test to find out whether the statement made by the exporter is true or not within section 12 (1), is to find out if he 'bonafide' believed and was satisfied that the goods would fetch the particular value declared by him. If this requirement is satisfied, the learned Judge was of the view that there is sufficient compliance with section 12 (1) of the Act as amended. This view was expressed after noticing that the amendment to section 12(1) was, in view of the Supreme Court decision in A.I.R. 1970 SC. 794. Without a fuller argument as to the object and scope of the amendment, which I did hot have the advantage of hearing, I would hesitate to express myself on this aspect. 8. This view was expressed after noticing that the amendment to section 12(1) was, in view of the Supreme Court decision in A.I.R. 1970 SC. 794. Without a fuller argument as to the object and scope of the amendment, which I did hot have the advantage of hearing, I would hesitate to express myself on this aspect. 8. Counsel for the respondents drew my attention to the judgment of a Division Bench of this court in Additional Collector of Customs and Excise, Cochin v. M/s South Indian Coir Mills and another, I.L.R. 1974 (2) Kerala 690. I am unable to see how that judgment has any application. The facts are set out in paragraph 3; and on the facts found by the learned Single Judge, and accepted by the Division Bench, it was quite plain that there was an attempt at contravention of section 12 (1) of the Foreign Exchange Regulation Act. At page 698 again, it is stated that it was indisputable that there was such an attempt by the petitioner in that case to export the goods in contravention of section 12 (1) of the Customs Act. The learned Single Judge allowed the writ petition on the ground that although there was an attempted contravention, there has been no actual contravention of section 12 (1) of the Act. The Division Bench pointed out that this was not necessary, and that having regard to section 113 (d) of the Customs Act an attempt at contravention would suffice. The difficulty arises by reason of the Supreme Court's decision in A.I.R. 1970 S.C. 794, that the information called for cannot be regarded as restrictions or deemed restrictions under section 12 (1) read with section 11 of the Customs Act. If so, there cannot be any contravention under section 111 (d). 9. The petitioner has prayed to quash Ext. P-20 directing the petitioner to show cause against confiscation of the goods and against penal action to be taken pursuant to such confiscation. Having regard to the fact that the goods have already been exported, there can be no question of confiscation of the goods under section 113 (d) of the Customs Act; and the petition in so far as it seeks to quash Ext. P-20 threatening confiscation of the goods seems to have become infructuous. Having regard to the fact that the goods have already been exported, there can be no question of confiscation of the goods under section 113 (d) of the Customs Act; and the petition in so far as it seeks to quash Ext. P-20 threatening confiscation of the goods seems to have become infructuous. Section 113 (d) makes it clear that the action under it can only be taken in respect of goods attempted to be exported or brought into the Customs area for purpose of export. Under section 114 of the Act penalty can be levied only on a person who, in relation to any goods, does or omits to do any act or omission which would render such goods liable to confiscation under section 113. In this case, as the goods themselves are not liable to confiscation, having been exported, I am unable to see any case for penal action being taken against the petitioner. Nor was it explained, how after export of the goods a confiscation of the goods and penal action in regard to them can be sustained. I deplore the result, but the consequence appears inescapable. I, therefore, hold that as the goods have been exported by the petitioner, Ext. P-20 notice, in so far as the same threatens confiscation and penal action, is incapable in law of being implemented, and therefore no question of quashing the same can arise. In that view I decline to grant the relief of quashing Ext. P-20 in so far as the same seeks to confiscate the goods and to impose a penalty. 10. However, the question remains in regard to the ten thousand rupees deposited by the petitioner in this Court in pursuance of the order on C.M.P. No. 14705 of 1972. As I have held that there is no warrant for the action under section 12 (1) of the Foreign Exchange Regulation Act even in its amended form it follows that the petitioner will be entitled to get back this amount from this court. I order accordingly and allow this writ petition to that extent. There will be no order as to costs.