Addl. Collector Of Customs v. Toolisidas Jewraj — 1975 DIGILAW 38 (CAL)

JUDGMENT 1. THIS is an appeal against the judgment and order of Sabyasachi Mukharji, J, dated June 9, 1972 whereby the rule nisi was made absolute. The facts, in short, according to the petition are as follows: The petitioner firm has been carrying on the business of exporter of jute goods from India to foreign countries including united States. Contracts were entered into by the petitioner on December 19, 1961 for shipment in January 1962 of jute goods to Messrs Frank samuel and Co. of New York, through their agents M/s. C. J. Dammann Inc., new York, U. S. A. In January 1962 the price of jute goods contracted for appreciated considerably and to avoid severe loss, the petitioner through the said agent arranged for switching the shipment over to April/june, 1962. The petitioner thereafter made arrangement for shipment of a consignment of 435 bales of hessian cloth by S. S. "city of singapore" and submitted shipping bills along with G. R. I, forms with the Customs authorities on June 1, 1962. The gain resulting from the sale of January goods in January itself was allowed to the buyers and the profit to them was discounted from the sale price for subsequent shipment and shown accordingly in the shipping bills and G. R. I. forms which was thus not the full export value of goods. On June 5, 1962 as required Shantimoy Mukherjee Customs sarkar of the petitioner and one m. V. Ashar appeared before Krishnamurty, the Customs Appraiser and supplied to him all information regarding the consignment. The Appraiser apparently satisfied dictated to them a letter to be written by the petitioner firm to the Customs authorities on the basis whereof the consignment would be permitted to be exported. Relying on such representation, the letter as dictated signed by Ashar was delivered to the Appraiser. By that letter of june 5, 1962 the adjustment of price as aforesaid was admitted on behalf of the petitioner and it was further stated that there was no malafide in the action and further the firm did not want any show cause memo and would agree to abide by the decision of Custom. The petitioner denied that Ashar had any authority on its behalf to waive the issue of show cause memo or to agree to abide by the decision of the Customs authorities. The petitioner denied that Ashar had any authority on its behalf to waive the issue of show cause memo or to agree to abide by the decision of the Customs authorities. Thereafter they appeared before S. K. Srivastava the Additional collector of Customs, Calcutta in short interview when few questions were put to them. In the meantime s. s. "city of Singapore" left without taking the consignment. 2. ON June 6, 1962 the Additional collector of Customs passed an order in respect of the said goods, the relevant extracts whereof are as follows : "the explanations reveal that a sort of "phatka" business is being carried on by the so-called consignees abroad, and that in this business the so-called shippers in India are playing the role of the brokers, and in that role they have undertaken to remit to them invisibly the profits earned out of the 'phatka' business. The shippers appear to be conscious that they cannot remit the aforesaid profits legally, and hence they have chosen to harness into service the medium of export business in this connection. The F. O. B. values declared by the shippers in the G. R. Forms are, on their own admission, incorrect and the object of making these incorrect declarations is unethical and otherwise highly objectionable on more than one ground of economics. . . . . . " "in view of the foregoing i hold that an attempt has been made by messrs. Toolsidas Jewraj to ship the goods covered by the Shipping Bills and the G. R. Forms mentioned in the appendix, without making a declaration 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. In terms of the notification No. 2 (17)-F. I 47 dated 4th August, 1947, as amended, issued under Section 12 (1) of the Foreign exchange Regulation Act, 1947, as amended the export of the present goods, without making the declaration, referred to in the previous sentence is prohibited. Accordingly, the shippers in the present case have committed offences attracting the provisions of section 167 (8) of the Sea Customs Act as read with Section 23a and 23b of the Foreign Exchange Regulation Act, 1947 as amended. Accordingly, the shippers in the present case have committed offences attracting the provisions of section 167 (8) of the Sea Customs Act as read with Section 23a and 23b of the Foreign Exchange Regulation Act, 1947 as amended. The goods in the present case are, therefore, liable to confiscation and the shippers are liable to personal penalty, under the aforesaid sections and also under Section 167 (37) of the Sea Customs Act. In view of the foregoing Order, I confiscate the goods in question under section 167 (8) of the Sea Customs Act, read with Section 23a of Foreign Exchange regulation Act. In lien of confiscation, i impose fine of Rs. 3,00,000/- (Rupees three lakhs only. The fine should be paid within a week hereof. A personal penalty of Rs. 50,000/- (Rupees fifty thousand only) is also imposed on the shippers under Section 167 (8) the Sea Customs Act. The personal penalty should be paid within three days of the receipt of this order. " The petitioner preferred an appeal against the said order under Section 188 of the Sea Customs Act, 1878 to the Central Board of Revenue which by its order of December 10, 1963 affirmed the findings and order of the additional Collector. It was observed therein. "from the foregoing it is evident that the correct reason for the reduction in price was not that the appellants requested for postponement of the delivery period, but the facts that hypothetical profit, which was in the nature of a speculative gain, was set off from the export value of the goods. It appears that in anticipation that the profits made in the speculative transaction, namely, if the goods were sold in january elsewhere, would not be allowed by the Reserve Bank, the appellant made deduction of the same from the export value of the goods. Since such a deduction did not have the permission of the Reserve Bank, it was illegal. In any case, it is clear that the value declared in the shipping bill and G. R. I. form was not the full export value of the goods, and as such, there was clearly a contravention of Section 12 (1. Since such a deduction did not have the permission of the Reserve Bank, it was illegal. In any case, it is clear that the value declared in the shipping bill and G. R. I. form was not the full export value of the goods, and as such, there was clearly a contravention of Section 12 (1. of the Foreign Exchange Regulations act, for which the appellant was liable to punishment under Section 167 (8), sea Customs Act by the application of section 23 (A), Foreign Exchange Regulation act and Section 19 of the Sea customs Act. " 3. THE Board however felt that the fine of Rs. 3 lakhs in lieu of confiscation was rather excessive and accordingly reduced the fine to Rs. 1. 85 lakhs directing the refund of the excess amount of Rs. 1. 15 lakhs to the petitioner which the petitioner, it is alleged, received without prejudice. 4. THE petitioner contended that the respondent No. 2 D. P. Anand member of the Central Board of Revenue committed an error in accepting that M. V. Ashar had authority to represent the petitioner firm as its general representative. Further in passing the impugned orders the respondent no. 2, it was contended, wrongly construed that the relevant provisions of the said statutes were violated when the exact invoice price the exporter would receive was declared which might not be the full export value of the goods. The petitioner on these allegations and contentions moved an application under article 226 (1) of the Constitution praying for a writ in the nature of certiorari for quashing the impugned orders dated June 6, 1962 and December 10, 1963 and also for a writ in the nature of mandamus directing the additional Collector of Customs, DP. Anand and the Union of India to refund to the petitioner the aforementioned amount of Rs. 1. 85 lakhs as also the sum of Rs. 50,000/- imposed as personal penalty. On this application, a Rule nisi in terms of the prayer was issued by this Court and on behalf of the aforesaid opposite parties to the rule, an affidavit-in-opposition was affirmed on september 26, 1964 by the said Custom apraiser Krighnamurthy wherein all allegations made against him as also in regard to the proceedings before the additional Collector made in the petition were denied. It was further stated in para. 7 (d) as follows: 5. (D. ". . It was further stated in para. 7 (d) as follows: 5. (D. ". . . . The correct position is that the contracts were entered into on december 19, 1961 for January 1962 shipment. The contract price was 955d for sizes 40-10 Oz. On January 11, 1962 the price of the said goods appreciated to 1034d i. e. there was difference of 79d. The price prevailing on January 11, 1962 for shipment in April-June 1962 i. e. the extended period, was 867d. It appears from the letter dated June 4, 1962 from the petitioner that if the profit of 79d was deducted from the price prevailing on January 11, 1962 for shipment in April June 1962, the net amount came to 788d. On this after adding brokerage commission the value was fixed at 802d. (e. From the foregoing it is evident that the reason for the reduction in price was not that the petitioner requested for the postponement of the delivery period but the setting off of a speculative gain from the export value of goods. " It was specifically denied that the Appraiser was satisfied about the shipment or made any representation or dictated only letter as alleged or the letter of June 5, 1962 was dictated by him. The said letter, it was stated, was written by the petitioner's representatives of their own and M. V. Ashar all along represented the petitioner. The hearing took place before the Additional Collector where the deponent was present and the petitioner was aware of the charges as also the offences committed by it as the F. O. B. values had been wrongly declared in the shipping bills and G. R. Forms, It was denied that the actions taken by the customs authorities were wrongful or illegal or that the petitioner was entitled to the aforesaid sums. Further there was contravention of section 32 (1)of the Foreign Exchange Regulation act and the petitioner was liable to punishment under Section 167 (8) of the Sea Customs Act by application of section 23a of Foreign Exchange regulation Act and Section 19 of the Sea customs Act. 6. THE petitioner filed an affidavit-in-reply affirmed by its partner Gopaldass toolsidass on February 4, 1967 wherein the allegations made in the said affidavit-in-opposition were denied and those in the petition were reiterated. 6. THE petitioner filed an affidavit-in-reply affirmed by its partner Gopaldass toolsidass on February 4, 1967 wherein the allegations made in the said affidavit-in-opposition were denied and those in the petition were reiterated. It was further stated that the value of the goods in question to be exported in april, May and June 1962 was duly legally and validly arrived at in accordance with the custom and practice of jute trade by allowing suitable discounts for the extended periods of shipment. The learned Judge at the hearing of the rule proceeded to consider the case on the assumption that the facts stated in the order of the Additional. Collector to the effect that the petitioner waived its right to receive show cause notice and M. V. Ashar repeated the request to him for disposal of the case without issuing any show cause notice. It was held that even according to the Custom authority a declaration was filed under Section 12 (1) of the Foreign Exchange Regulation act, 1947 which was incorrect and untrue. Thereby the petitioner was stated to have committed an offence under section 167 (8) of the Sea Customs act, 1878 read with Section 23a of the Foreign Exchange Regulation act 1947 (before 1969 Amendment)and Section 19 of the Sea Customs Act, 1878. The learned Judge relied on the decision in Union of India and others v. Rai Bahadur Shreeram Durga Prasad p. Ltd. and others A. I. R. 1970 S. C. 1597 as also other subsequent decisions and held that once a declaration incorrect or untrue was filed there was compliance with provisions of Section 12 (1)of Foreign Exchange Regulation Act and the Additional Collector of customs as also of the Board of Revenue had no jurisdiction to pass the impugned orders which were accordingly invalid and without jurisdiction. The court also overruled the contention of the Customs authority that having availed of the alternative remedy, the petitioner could not abandon the same in the mid-way, as the jurisdiction of the Customs authority to pass the impugned order was challenged throughout. It was further held that though the order of the adjudicating authority, merged in the appellate order, they were interlinked and cause of action arose within the jurisdiction of this court which accordingly had the jurisdiction to decide the case. It was further held that though the order of the adjudicating authority, merged in the appellate order, they were interlinked and cause of action arose within the jurisdiction of this court which accordingly had the jurisdiction to decide the case. The rule was accordingly made absolute and the impugned orders were quashed and the authorities were accordingly directed to refund the amount. 7. THE propriety of this decision has been challenged in this appeal by the Union of India and the Additional collector of Customs. 8. MR. G. P. Kar, learned counsel appearing for the appellants contended that the application filed by the petitioner firm involved consideration of seriously disputed questions act relating the authority of M. V. Ashar to represent the firm, the representation made by the Customs Appraiser and the waiver of the show cause notice on behalf of the petitioner as alleged. These facts, it was submitted, cannot be appropriately tried in a writ proceeding as a decision thereon would involve examination of witnesses in a considerable scale. There can be no dispute over the proposition raised by Mr. Kar but it is not necessary for us to decide the contention, as Mr. R, C. Deb, learned counsel for the petitioner firm, the respondent before1 us, has rightly pointed out, without admitting the Custom's case on facts, that appeal may be decided on the determination of the legal validity of the impugned orders. We shall now examine the impugned order in the context of the law and judicial decisions relied on by the parties. Sections 19 and Section 167, items (8) and (37) of the Sea Customs act, 1878 are as follows: section 19. "power to prohibit or restrict importation or exportation of goods. Central Government may from time to time, by notification in the Official gazette, prohibit or restrict the bringing or taking by sea or by land goods of any specified description into or out of India across any customs frontier as defined by the Central Government. Section 167. Punishments for offences the offences mentioned in the first column of the following schedule shall be punishable to the extent mentioned in the third column of the same with reference to such offences respectively : offences section of this Act to which offence has reference. Penalties 8. Section 167. Punishments for offences the offences mentioned in the first column of the following schedule shall be punishable to the extent mentioned in the third column of the same with reference to such offences respectively : offences section of this Act to which offence has reference. Penalties 8. If any goods, the importation or exportation of which is for the time being prohibited or restricted by or under Chapter IV of this Act, be imported into or exported from India contrary to such prohibition or restriction of if any attempt be made so to import or export any such goods; 18 and 19 such goods shall be liable to confiscation; and any person concerned in any such offence shall be liable to a penalty not exceeding three times the value of the goods, or not exceeding one thousand rupees. 9. SECTION 23a of the Foreign Exchange Regulation Act, 1947 (prior to amendment of 1969) provided as follows : sec. 23a. Application of Sea. Customs Act 1878 : Without prejudice to the provisions of Section 23 or to any other provisions contained in this Act, the restrictions imposed by Sub-sections (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 19 of the Sea Customs Act 1878, and all the provisions of that Act shall have effect accordingly, except that section 183 thereof shall have effect as if for the word "shall" therein the word "may" were substituted. 10. SECTION 12 (1) of the Foreign exchange Regulation Act, which was thus engrafted in the Sea Customs Act, is as follows: "the Central Government may, by notification in 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 unification from India directly or indirectly to any place so specified unless a declaration supported by such evidence as may be, prescribed or 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. " The Central Government published the following Notification No. 12 (17)-F1/47, dated the 4th August, 1947 as amended upto 1st April 1970 : "in exercise of the powers conferred by sub-section (1) of section 12 of the Foreign Exchange Regulation Act 1947 (VII of 1947), and in supersession of notification No. 12 (14) F1/47 dated the 25th March 1947, in the France department, the Central Government with effect from the 19th August 1947 is pleased to prohibit the export otherwise than by post of any goods either directly or indirectly to any place outside india other than any of the countries or territories in the schedule annexed to this order (Nepal, Bhutan) unless a declaration supported by such evidence as may be prescribed 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. . . . . . " 11. IN exercise of the power conferred by section 27 of the Act, the central Government has made rules known as Foreign Exchange Regulation rules, 1952 and under Rule 3, the form G. R. I. set out in the First Schedule is the declaration to be furnished by the exporters before shipping commodities from India to territories outside India. The declaration in the said form requires the invoice value declared is to be the full export value of the goods and it is the same as that contracted with the buyer or it is a fair valuation of goods which are unsold. Rule 5, sub-rule (1) provides that the Reserve Bank or the Collector of Customs or the postal authorities, to satisfy themselves of due compliance with section 12 of the Act and under sub-rule (2), may require any exporter to produce in support of the declaration such evidence as may be in his possession or power to satisfy them that the invoice value stated in the declaration is the full export value of the goods and such value of the goods has been or will be paid to the exporter. 12. IN the context of these provisions in law, it is to be examined if the petitioner committed a breach of the provisions of section 12 (1) of the foreign Exchange Regulation Act. 12. IN the context of these provisions in law, it is to be examined if the petitioner committed a breach of the provisions of section 12 (1) of the foreign Exchange Regulation Act. In doing so, we must exclude from our consideration the provisions of Rules framed under section 27 of aforesaid act, as was held by the Supreme Court in Becker Gray and Co. (1930) Ltd. and others v. Union of India and another a. I. R. 1971 S. C. 116. We have therefore to see if on facts set out in the order of the Additional Collector of customs the petitioner can be said to have violated the provisions of section 12 (1) of the Foreign Exchange Regulation act and accordingly liable to be proceeded against under section 23a of the said Act read with section 19 and section 167 (8) of the Sea Customs Act 1878. In the decision in Union of india and others v. Rai Bahadur Shreeram durga Prosad P. Ltd. and others a. I. R. 1970 S. C. 1597 hereinafter referred to as Rai Bahadur's case the Court was considering the case of export of manganese ore made by the respondents therein. Before export, they had filed declarations in prescribed forms wherein they had declared the full export value in prescribed forms and also furnished prescribed evidence. The allegations against them were that they had under-invoiced the goods failed to repatriate a portion of the foreign exchange earned by them and gave incorrect information in the declarations. It was not disputed before the Court that if the information given by the respondents in the said declarations was false to the knowledge of these who made those declarations or if they had reasonable cause to believe that it was false or not true in any material particular then they were liable under section 23 foreign Exchange Regulation Act. It was open to the Director of Enforcement to levy on such of the respondents as have contravened section 12 (2) penalty not exceeding three times the value of foreign exchange not repatriated which in that case could be about nine crores of rupees. 13. It was open to the Director of Enforcement to levy on such of the respondents as have contravened section 12 (2) penalty not exceeding three times the value of foreign exchange not repatriated which in that case could be about nine crores of rupees. 13. THE Court then proceeded to consider the question whether the allegations came within the scope of section 23a in which case they would be governed by Sections 19 and 167 (8)of the Sea Customs Act, 1878 and the mere fact that the offences were punishable under Section 23 would not exclude the operation of Section 23a which involves contravention of Section 12 (1. The Court then observed : "the only restriction placed by Section 12 (1) read with the Central Government notification dated August 4, 1947, is that no one should export any goods from this country without furnishing the declaration mentioned in section 12 (1. 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 to 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 east. The information called for in the prescribed form cannot be considered as 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 evidence prescribed or specified is furnished. . . . . . The declaration required by Section 12 (1) is only to the effect that the amount representing the full export value of the goods has been on will within the prescribed period be paid in the prescribed manner. " 14. THE Court noticed that the section governs goods sold to foreign buyers as also goods sent on consignment basis. . . The declaration required by Section 12 (1) is only to the effect that the amount representing the full export value of the goods has been on will within the prescribed period be paid in the prescribed manner. " 14. THE Court noticed that the section governs goods sold to foreign buyers as also goods sent on consignment basis. While in case of goods sold it is possible for the exporter to know the exact value, he may not know the position when goods are sent on consignment basis. In case of goods sent on consignment basis, the exporter can only give an estimated value. The court accordingly came to the following conclusion : "if we are to hold that every declaration which does not state accurately the full export value of the goods exported is a contravention of the restrictions imposed by Section 12 (1) then, all exports on consignment basis must be held to contravene the restrictions imposed by Section 12 (1. Admittedly section 12 (1) governs every type of export. Again it is hard to believe that legislature intended that any minor mistake in giving the full export value should be penalised in the manner provided in Section 23a. The wording of section 12 (1) does not support such a conclusion. Such a conclusion does not accord with the purpose of Section 12 (1. " The contravention of Section 12 (1)in the case under consideration was the respondents' failure to repatriate any part of the foreign exchange earned by them by sale of manganese ore exported it was open to the Director of enforcement to levy penalty on such of the respondents as have contravened the said provision. The Court observed : "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. These provisions go to indicate that so far as the value of 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. These provisions go to indicate that so far as the value of 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 Director of Enforcement. " It may be noted that in this case the goods had already been exported and the charge was the failure to repatriate a portion of foreign exchange earned by them as also giving declaration which did not comply with rule 5 of the Foreign Exchange Regulation Rules. The ratio of the decision appears to be (I) The declaration required by 12 (1) is only to the effect 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. (II) Neither Section 12 (1) nor any other provision in the Act empower the rule-making authority to add to the restrictions therein imposed and only those restrictions under section 12 (1) are to be looked into in examining if there has been any contravention of the said section. (III) Minor mistakes in the declaration in respect of the full export value of goods to be exported does not constitute a breach of the provisions of section 12 (1) and notification on basis thereof. (IV) Bonafide inaccuracies in the estimated full export value of goods in the declaration, inevitable or unavoidable in case of goods sent on consignment basis, do not also constitute breach of the provisions of Section 12 (1) and notification on basis thereof. (V) A bonafide declaration containing such minor mistakes or unavoidable inevitable inaccuracies in a sufficient compliance of Section 12 (1) and notification on basis thereof. (V) A bonafide declaration containing such minor mistakes or unavoidable inevitable inaccuracies in a sufficient compliance of Section 12 (1) and notification on basis thereof. (VI) Once the goods are exported the matter is left in the hands of the reserve Bank or the Director of enforcement while all the Customs authorities have to see is that no goods are exported without furnishing the declaration prescribed under Section 12 (1. 15. THE above decision was followed in the case Becker Gray and Co. (1930)Ltd. (supra) where the goods which were sent on consignment basis had already left the shores of India. The declaration was filed in Form G. R. I. prescribed by rules under Section 27. In interpreting the above decision the court followed the earlier decision which held that under valuation in a declaration under Section 12 (1) does not amount to contravention of the restrictions imposed by that provision, which must be deemed to be confined to the circumstances noted in the said decision. The Court found that the incorrect information related to points under G. R. I, form on which Section 12 (1) does not require a declaration. The Court observed: "under section 23a of the Act, only a breach of restrictions imposed by section 12 (1) of the Act is to be deemed in contravention of restrictions imposed by Section 19 of the Sea Customs act. An incorrect declaration, in contravention of the Rules made under section 27 of the Act is not to be deemed a contravention of any restriction, imposed by Section 19 of the Sea customs Act. " It was held that the imposition of the penalty under Section 167 (8) in those cases accordingly was totally unjustified. 16. STRONGLY relying on these decisions mr. Deb contended that making an untrue declaration is hot a contravention of the restrictions under Section 12 (1) read with Section 23a and once a declaration is filed, proceeding under section 19 of Sea Customs Act" read with Sections 23a and 12 (1) of foreign Exchange Regulation Act will be without jurisdiction or authority of law. This, he submitted, is the declaration of Taw by the Supreme Court irrespective of whether goods are ported or not and such declaration, which has greater force than, precedents, is binding on all courts in India. This, he submitted, is the declaration of Taw by the Supreme Court irrespective of whether goods are ported or not and such declaration, which has greater force than, precedents, is binding on all courts in India. He has further submitted that in view of the aforesaid decision, Parliament by Amendment Act 40 of 1969, in replacement of Ordinance 9 of 1963 had to make necessary amendments to sections 12 (1) and 23a of the Foreign exchange Regulation Act to prevent under-invoicing of good to be exported abroad. In the objects and reasons of the said amending Act, it was slated as follows : "all along the view held by officers of Customs supported by certain decisions of High Courts has been that the act and the notification imposed upon the exporter an obligation to specify in the declaration the true full export value of the goods and that in the event of his failure to make a true declaration, the prohibition of export imposed by notification would operate. It was thus assumed that if the exporter fails to make a correct declaration of the full export value; it was open to the Customs authorities to seize the goods in respect of which such an erroneous declaration has been made and to take steps for the confiscation of the goods and the imposition of a penalty. However, in the case of Union of india v. Rai Bahadur Shree Ram durga Prosad Private Ltd., the Supreme court held that the declaration required by section 12 (1) of the Act is only to the effect 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. In the case of mis-declaration of the full export value, it was held by the Court that it was not open to the customs Authorities to take any action against the goods, though the exporter would be liable to be proceeded against under Section 23 of the Act for making a false declaration. . . . . . . . . . With a view to preventing under invoicing it was necessary to amend the act so as to restore to the Customs authorities powers which they believed to possess prior to the aforesaid judgment of the Supreme Court. . . . . . . . . . . . . . . . . With a view to preventing under invoicing it was necessary to amend the act so as to restore to the Customs authorities powers which they believed to possess prior to the aforesaid judgment of the Supreme Court. . . . . . . . " The amendments in Section 12 (1) provide for a declaration to be true in all material particulars as to amount representing full export value or when it is not ascertainable at the time of export the value which the exporters having regard to prevailing marketing conditions expect to receive on the sale of goods in course of international trade and further affirm that the full export value has been or will be paid within the prescribed period in the prescribed manner. Similarly by amendment of Section 23a the restrictions imposed by or under, amongst others, subjection (1) of Section 12 are to be deemed to have been imposed under Section 11 of the Customs Act, 1962 (which is in pari materia with section 19 of the Sea Customs Act, 1878 thereby repealed. 17. THESE contentions have been disputed by Mr. Kar who submitted that Rai Bahadur's case did not lay down that even declaration false to the knowledge of the exporter would be compliance of Section 12 (1), 18. IT cannot be said that the interpretation of the propositions of law in respect of a decision of the Supreme court made by Government or parliament is binding on a Court of law and this position has not been disputed by mr. Deb. On a careful consideration off the decisions cited above it appears to us that the Supreme Court did not lay down the proposition that any declaration under-valuing the export value of the goods would be sufficient to bring it out of the operation of Section 12 (1. Indeed it would inconceivable that such proposition of law would be laid down by any Court. Such proposition carried to its logical conclusion, would mean that even any declaration grossly undervaluing the goods for export which is again false or false to the knowledge of the exporter will be deemed as compliance of provisions of section 12 (1. Indeed it would inconceivable that such proposition of law would be laid down by any Court. Such proposition carried to its logical conclusion, would mean that even any declaration grossly undervaluing the goods for export which is again false or false to the knowledge of the exporter will be deemed as compliance of provisions of section 12 (1. What the propositions laid down, as we have already indicated is that the minor mistakes or bonafide inaccurate valuation which is inevitable unavoidable when goods are sent on consignment basis, should be relieved of the hardship of the said provisions. There may be other cogent reasons which may prevent declaring ah accurate full export value of goods. When however there is no difficulty in stating the full export value accurately and am untrue declaration is purposely or deliberately or for some other ulterior reasons made, the provisions of Section 12 (1) would be attracted and Customs authorities would be free to exercise their powers. The Supreme Court decisions do not protect a declaration which is false or false to the knowledge of the exporter in regard to the full export value of the goods to be exported which is a mandatory requisite under section 12 (1) and the notification of August 4, 1947 thereunder, even we disregard the rules framed under Section 27 and the forms thereunder. The decisions only protected minor mistakes or inaccurate valuation made of goods sent on consignment basis when inaccuracies, and not fraudulent undervaluation are not unnatural or cannot be avoided even when acting bonafide. Section 12 (1) under its terms, as we have seen, requires that a declaration containing full export value of goods to be exported is to be given. When there is a declaration which is not true containing under valuation of the goods which is neither a minor mistake nor a bonafide inevitable or unavoidable inaccuracy, such declaration cannot be accepted as a declaration under provisions of the said section. Such declaration accordingly is not projected by any of the decisions of the Supreme court referred to above and is to be treated as non east or a false declaration. In either case there is absolute non-compliance of the provisions of section 12 (1) and accordingly under section 23a, such breach is to be treated as an offence under Section 19 read with section 167 (8) of the Sea Customs act, 1878. 19. In either case there is absolute non-compliance of the provisions of section 12 (1) and accordingly under section 23a, such breach is to be treated as an offence under Section 19 read with section 167 (8) of the Sea Customs act, 1878. 19. IN the case before us, there is admittedly an under valuation of the goods which was deliberately made and it is not claimed that such mistake was a minor one or inaccurate for the reason that it was not possible to declare the full export value of the said goods. Accordingly the declaration in eye of law was either non est or a false declaration in breach of Section 12 (1)attracting the provisions of Section 19 read with Section 167 (8) of the Sea customs Act, 1878. Accordingly we do not find any legal infirmity in the order impugned in the connected rule and we hold that the said orders are legal and valid. 20. MR. Deb referred us to two unreported bench decisions of this Court in support of his contention. The appeal additional Collector of Customs v. Vishwanath More (Appeal No. 21 of 1970 dated August 13, 1970) was concerned with a deliberate under valuation in the shipping bills of goods yet to be exported. In this appeal it was in effect conceded by customs on the basis of Rai Bahadur's case that there was no violation of Section 12 (1) of the Foreign Exchange Regulation Act as also held in the judgment under the said appeal, so as to attract Section 167 (8) which decision as we have seen does not warrant such proposition. In assistant Collector of Customs v. Duncan brothers and Co. Ltd. (Appeal No. 90 of 1969 dated February 27, 1970), it was found that the petitioner showed one destination for export of the goods while the actual intention was to export the goods to a different country. It was held that there could be no violation of Section 11 of she Customs Act on its terms without reference to notification there under which was not the charge against the exporter. In the earlier case, there was no decision in view of the concession, while in the appeal before us the charge was for the violation of Section 19 read with the relevant notification. Accordingly the decisions cited above have no application to the present case before us. Mr. In the earlier case, there was no decision in view of the concession, while in the appeal before us the charge was for the violation of Section 19 read with the relevant notification. Accordingly the decisions cited above have no application to the present case before us. Mr. Deb also submitted that the violation of the provisions of the sea Customs Act, 1873 would be, even accepting the case of the Customs authorities, under Section 167 (37) Clause (c), so that action under section 167 (8)is misconceived and unwarranted. Section 167 (37) provides for goods entered at or brought to be passed through a customs house and contents of such packages are misstated in regard to sort, quality, quantity or value. In the present case, it not the case that any goods were entered at or brought to be passed through customs house, so that it could be said that the " contents of particulars of any package of goods was misstated in regard to value or other matters. Section 167 (37) has thus no, application and no action has been taken under the said provision. 21. MR. Kar has contended that the petitioner, having availed of the alternate remedy, should not be allowed to turn round to invoke the jurisdiction of this Court under Article 226 (1) of the Constitution particularly after taking advantage of an appellate order by way of receipt of a portion of penalty. There is otherwise force in the contention but in cases where the jurisdiction of the authorities to pass impugned order is challenged, the alternative remedy should not be a bar to writ proceedings. 22. THERE appears to be a serious defect of parties in the Central Board of Revenue whose order has been challenged has not been made a party in the connected Rule. The Central Board of Revenue is constituted under the central Board of Revenue Act, 1924 and under Section 3 every order made in accordance with the Rule framed by the Central Government for regulating its transaction of business is to be deemed to be the order of the Central board of Revenue. The petitioner while challenging the order of the central Board of Revenue, impleaded its erstwhile member D. P. Anand describing him as member of the Board. The petitioner while challenging the order of the central Board of Revenue, impleaded its erstwhile member D. P. Anand describing him as member of the Board. It appears that the Board at the material time was constituted with a single member D. P. Anand even then the impugned order passed by him is to be deemed to be an order of the Central board of Revenue. There is accordingly a defect of party on the face of the petition itself. Mr. Deb submitted that if that is the finding of this Court, the petitioner would consider the steps to be taken for impleading the Board. Alternatively Mr. Deb submitted that there is no merger of the original order in the appellate order when the original order is a nullity and he relied on the decision in State of U. P. v. Mohammad Nooh, A. I. R. 1958 S. C. 86. It was held in that case that while the original tribunal acts wholly without jurisdiction rendering its order a nullity and recourse was had to its appellate authority which confirmed what ex facie was a nullity, the Court can issue prerogative writ of certiorari to correct the error of the tribunal of first instance. Accordingly it was contended that the Central Board of Revenue was not a necessary party. 23. MR. Kar made a further submission that the learned trial Judge was in error in directing refund of money which is not permissible in writ proceedings. In contesting the contention, mr. Deb referred to the decision in suganmal v. State of Madhya Pradesh a. I. R. 1965 S. C. 1740 in which it was held that a petition solely praying for issue of a writ of mandamus directing state to refund the money alleged to have been illegally collected as tax is not ordinarily maintainable. Such petition it appears would be maintainable where the validity of the order is challenged and refund is only a consequential relief. 24. WE are however relieved of considering these contentions, as we have found that the impugned orders are legal and valid. The appeal accordingly is allowed, the judgment and order under appeal are set aside and the rule is discharged. There will be no order for costs. There will be stay of operation of this order for 6 weeks as prayed for.