Judgment :- All these writ petitions can be dealt with under a common judgment since the point in issue is one and the same. 2.It would be sufficient for me to note the facts in W.P. 1856 of 1975 alone. The petitioner firm (Messrs. Dadha Pharma Private Ltd.) imported drugs called "Chloramphenical Capsules USP" from Nepal. Their exporters were Messrs Eastern Nepal Industries, Biratnagar, Nepal. "The said exporters have a big pharmaceutical factory in Biratnagar. They manufacture the said capsules from imported chloramphenical powder, carrying out certain operations and filling the powder in gelatine capsules to be marketed as capsules. 3.The petitioner imported the said Chloramphenical capsules USP without import licence on the strength of Rule 176 of the Import Trade Control Hand Book of Rules and Procedures, 1969. The said rule was framed following a Treaty between India and Nepal under which no import licence would be required for importing goods which are produce of Nepal and manufactured in that country. Several consignments were allowed clearance by the Customs in Calcutta. However, a stock of 82, 900 capsules were seized from N. Das and Co., Calcutta on 4-9-1969 and a show cause notice was issued on 18-3-1970, wherein the petitioner was called upon to show cause as to why action should not be taken under Section 111(d) of the Customs Act, read with Rule 41 of the Drugs and Cosmetics Rules, 1945, and why penal action should not be taken against them under Section 112 of the Customs Act, 1962 (referred to hereinafter as the Act). The petitioner furnished its reply. Thereupon an enquiry took place. The additional Collector of Customs, Calcutta, passed an order holding that the goods were not of Nepalese manufacture and, therefore, the import was unauthorized. He levied a penalty of Rs. 5000/- under Section 112 of the Act. On appeal to the Central Board of Excise and Customs, New Delhi, the appeal was dismissed. However, the quantum of penalty was reduced to Rs. 1800/-. This was on the finding that the drug could not be considered to be a Nepalese manufacture because manufacturers, according to the Central Board of Excise and Customs, implies a change so as to cause a different article to emerge. A revision was filed to the Government of India. That was dismissed on 19-1-1974. 1800/-. This was on the finding that the drug could not be considered to be a Nepalese manufacture because manufacturers, according to the Central Board of Excise and Customs, implies a change so as to cause a different article to emerge. A revision was filed to the Government of India. That was dismissed on 19-1-1974. It is thus the present writ petition has been preferred praying for certiorari to quash the order of the Government of India, dated 19-1-1974. 4.The main ground urged in the affidavit in support of the writ petition is as follows : The Drugs and Cosmetics Act, itself, defines 'manufacture'. Since various processes are carried out before actually making the drug consumable and for the drug to be marked as Chloramphenical capsules USP each one of the process would constitute manufacture, apart from the totality of such operation constituting 'manufacture'. Therefore, the interpretation placed by the Customs Department on 'manufacture' is untenable. In the counter affidavit filed it is stated that during the course of search conducted in the firm Messrs. Dass and Co., 16 Pollack St., Calcutta, 82, 900 capsules of Chloramphenical USP of the value of Rs. 18, 200/- seized. One jar of such capsules from each batch was drawn as sample in the presence of the representatives of the said Company for test. The test certificate indicated that the subject medicines were not of standard quality and that the same had been misbranded under Section 9(f) of Chapter III of the Drugs and Cosmetics Act, 1940, thereby attractive action under Rule 41(1) of the Drugs and Cosmetics Rules, 1945. 5.By letter dated 26-8-1969, a representative of the exporters of the petitioner stated that the imported capsules were filled up in their factory with the powder and then they were sold by them in India and Nepal. It was clear that the only process done in Nepal was capsuling the powder. Such a process did not render the goods the products of Nepal and so the goods must be deemed to have been imported for all purposes. It is submitted that the importation of goods of third country origin from Nepal into India is prohibited under Government of India, M.F.D.R. Notification No. 76/65 dated 17-6-1965. Such a process did not render the goods the products of Nepal and so the goods must be deemed to have been imported for all purposes. It is submitted that the importation of goods of third country origin from Nepal into India is prohibited under Government of India, M.F.D.R. Notification No. 76/65 dated 17-6-1965. Import of Chloramphenical, not being the produce of Nepal, into India, without I.T.C. licence is prohibited under Section 3 of the Import Trade Control Act 1947, read with I.T.C. Order No. 17/55 dated 7-12-1955 and was deemed to have been prohibited under Section 11 of the Act. After issue of show cause notice and furnishing of reply, a proper adjudication took place and the revision preferred by the petitioner had been rightly dismissed. 6.The letter dated 26-8-1969 given by the Eastern Nepal Industries contains a clear admission that the capsules were imported and were filled up in their factory with the imported Chloramphenical powder and were sold. Therefore, it is not correct to say that the goods were treated as of Nepalese origin. There is no manufacturing process involved nor could it be styled that the goods were manufactured in Nepal. Hence, the writ petition is liable to be dismissed. 7.Mr. S.B. Mani, learned Counsel appearing for the petitioners, raises the following two points before me, one of which is peculiar to W.P. No. 1857 of 1975. The interpretation placed by the department on the term 'manufacture' is not correct. First of all, the definition of 'manufacture' as occurring under the Drugs and Cosmetics Act must be made applicable. It is not necessary that the resultant produce out of 'manufacture' must be of a different type or quality; especially in the instant case when all that the petitioner wants is to sell his Chloramphenical powder in Capsule form. Even assuming that the manufacturer should involve a change as result of the treatment, labour and manipulation, in the instant case the goods before being capsuled, have undergone very many processes, including addition of inert substances, additive lactose, magnesium stearate. All these have been ignored in considering whether there is manufacture or not. Notwithstanding the specific averment in the affidavit, there is no denial of the same by the department in their counter affidavit. Therefore, if these processes have been carried out, that would be enough to attract the definition of 'manufacture'. All these have been ignored in considering whether there is manufacture or not. Notwithstanding the specific averment in the affidavit, there is no denial of the same by the department in their counter affidavit. Therefore, if these processes have been carried out, that would be enough to attract the definition of 'manufacture'. The second contention of the learned counsel for the petitioner was that in W.P. 1857 of 1975 the order itself would clearly show that the notice for seizure under Section 110 of the Act came to be issued beyond the six months from the date of seizure and therefore, they were returned. In such a case, there cannot be any order of confiscation, much less penalty in lieu of confiscation. 8.Mr. T. Chengalvarayab, learned Counsel appearing for the department, meets these contentions by contending that there is absolutely no possibility of importing the definition of 'manufacture' as occurring in Drugs and Cosmetics Act to the case on hand, where what is alleged is the violation of the Notification No. 76/65 dated 17-6-1965 under which the importation of goods of third country origin from Nepal is prohibited. The word 'manufacture' must be given the common meaning which would mean a change or transformation. In other words, a new and a different article must emerge having a distinct character or use. What the exporters of the petitioner did in Nepal was to granulate the powder and capsuled the same. By no stretch of imagination could it be called manufacture. 9.No doubt in W.P. No. 1857 of 1975, the notice came to be issued beyond the six months period contemplated under Section 110. That will only entitle the petitioner to the return of the goods. From that it does not follow that the goods have not attracted the liability to confiscation which attraction of liability alone is essential for imposition of fine in lieu of confiscation, as is provided under Section 125. The learned counsel also draws my attention to the Sections 111 and 112 and states that both these sections speak only of goods liable to confiscation and not the actual confiscation. Where therefore the goods are liable to confiscation irrespective of whether actually they were seized or not, action under Section 112 can be taken. Equally, Section 125 would also be attracted. Where therefore the goods are liable to confiscation irrespective of whether actually they were seized or not, action under Section 112 can be taken. Equally, Section 125 would also be attracted. In support of the submission, reliance is placed on Collector of Customs and Central Excise v. Amrutalakshmi - 1975 AIR(Mad) 43 and Munilal v. Collector, Central Excise, Chandigarh, 1975 AIR(P&H) 130.10.The word 'manufacture' has been defined under the Drugs and Cosmetics Act as follows -" * Manufacture in relation to any drug or cosmetic includes any process or part of a process for making, altering, or ornamenting, finishing, packing, labelling, breaking up of otherwise treating or adopting any drug or cosmetic with a view to its sale and distribution but does not include the compounding or dispensing of any drug or the packing of any drug of cosmetic in the ordinary course of retail business and to 'manufacture' shall be construed accordingly". 11.Having regard to the comprehensive language used in this definition, may be a mere capsuling would amount to manufacture. If the case relates to the Drugs and Cosmetics Act, which is not so in the instant case, the position would be entirely different. The petitioner is found liable for the violation of M.F.D.R. Notification No. 76/65 dated 19-6-1965 which says -" * In exercise of the powers conferred by sub-sec. (1) of Section 11 of the Customs Act, 1962 (Act 52 of 1962) the Central Government, being satisfied that for the prevention of smuggling it is necessary to do so, hereby prohibits the import from Nepal into India of goods which have been exported to Nepal from countries other than India". 12It is common case . that Chloramphenical was imported by Messrs. Eastern Nepal Industries from United States of America. If the goods had undergone the process of manufacture in the normal sense, certainly such goods could be validly imported. This is how it becomes essential to decide the question of manufacture. It is also to be noted that imports of Chloramphenical not being the produce of Nepal into India without an ITC licence is prohibited under Section 3 of the Import Trade Control Act of 1947, read with ITC Order No. 17/55 dated 7-12-1955 and it was deemed to be prohibited under Section 11 of the Act. It is also to be noted that imports of Chloramphenical not being the produce of Nepal into India without an ITC licence is prohibited under Section 3 of the Import Trade Control Act of 1947, read with ITC Order No. 17/55 dated 7-12-1955 and it was deemed to be prohibited under Section 11 of the Act. Therefore, a mere packing or even either granulating the powder of capsuling would not be enough to bring it within the term 'manufacture' for the purpose of the Imports and Exports (Control) Act, or the Treaty of Trade and Transit, etc., so as to convert the goods of non-Nepalese origin into goods of Nepalese origin. It is relevant at this stage to note Rule 176 of the Import Trade Control Hand Book of Rules and Procedures, 1969 on the strength of which the petitioner is alleged to have imported these goods. That rule reads -" * Imports and Exports of goods from and to Nepal are allowed without import and export control restrictions, provided the goods are either the produce of or manufactured in the respective countries subject to such exceptions and limitations as have been made and are in force, or may be made hereafter". Either by granulating or by capsuling, how is it transformed? Does it emerge as a different article with a distinctive character? Or again, is it commercially different? In my view, all these questions must be answered in the negative. If that be so, undoubtedly the petitioner has violated the notifications above referred to, and therefore, action could be taken validly for the violation under Section 111(d) of the Act read with Section 112 of the Act. No doubt, the show cause notice also refers to the violation of Rule 41 of the Drugs and Cosmetics Rules, in that the petitioner is said to have misbranded under Section 9(f) in Chapter III of the Drugs and Cosmetics Act, 1940. That may be so. So long as the action taken under the Act can be validly upheld, it does not matter whether the petitioner is liable to be proceeded with for the violation of the provisions of the Drugs and Cosmetics Act or the rules thereunder. Therefore, the first point raised by the petitioner fails. 13.Taking up W.P. No. 1857 of 1975, the order of the Additional Collector of Customs states after levying a penalty of Rs. Therefore, the first point raised by the petitioner fails. 13.Taking up W.P. No. 1857 of 1975, the order of the Additional Collector of Customs states after levying a penalty of Rs. 2, 000/-, under Section 112 of the Act," * since, however, show cause notice was not issued within 6 months of seizure of the goods although liable to confiscation are ordered to be released. "In view of this order, it is contended that if the goods cannot be confiscated, no action can be taken under Section 112 of the Act. I am totally unable to agree. Section 110 as the marginal note itself will show, deals with seizure of goods (we are not concerned with the documents and things presently). This section occurs under Chapter XIII. However, Chapter XIV is the one which speaks of confiscation of goods and conveyance and imposition of penalties. Section 111 states. The following goods brought from a place outside India shall be liable to confiscation." Clause (d) of this section under which action is taken reads - " Any goods which are imported or attempted to be imported or are brought within the Indian Customs waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being the force;" Section 112 reads : - " Any person - (a) who, in relation to any goods, does or omits to do any act, with act or omission would render such goods liable to confiscation under Section 111.. ... ... .... (b) who acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing, or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under Section 111.. ... .. ..." 14A careful reading of the sections would clearly . show that it is the liability to confiscation that is spoken to and not the actual confiscation. Therefore, it would mean that the power to adjudicate upon for the imposition of penalty for improper importation, springs from the liability to confiscate, and not actual confiscation. This is because not only Section 110 occurs under a different chapter, but the purpose of that section relates only to seizure about which I have already noted. Therefore, it would mean that the power to adjudicate upon for the imposition of penalty for improper importation, springs from the liability to confiscate, and not actual confiscation. This is because not only Section 110 occurs under a different chapter, but the purpose of that section relates only to seizure about which I have already noted. There again the words are "any goods are liable to confiscation under this Act." Merely because the department by reason of its inaction is not in a position to seize the goods, does not and cannot disable it adjudicating upon the liability for action under Section 111 read with Section 112 of the Act. In other words, the language of both the sections above referred to does not warrant the actual confiscation, but merely speaks of the liability of the goods being confiscated. This is the plain and most unambiguous meaning of the phraseology 'liable to confiscation' spoken to in these two sections.15I am fortified in my conclusion by referring to . Collector of Customs and Central Excise v. Amrutalakshmi, AIR 1975 Mad., 43 and Munilal v. Collector, Central Excise, Chandigarh, 1975 AIR(P&H) 130. In both these cases, though this line of interpretation has not been adopted, it has been categorically found that having regard to the scope of these two sections viz. Section 110 on the one hand and Section 111 read with Section 112 on the other, being independent of each other, seizure is not necessary for confiscation. This will be an added reasoning to any conclusion. Therefore, the second point raised by the petitioner also has to be rejected. 16A faint argument was advanced at the end that . the Board will have no jurisdiction to levy fine in consideration of the re-export. It has to be remembered in this case that W.P. 2798 of 1970 was filed against the order of the Additional Collector dated 8-6-1970, in which a direction was also prayed for to permit the firm to re-export the drug to Nepal. Pursuant to a direction from this court, the goods were allowed to be re-exported to Nepal on bank guarantee submitted by the petitioner. However, the writ petition was dismissed on 21-6-1972. Therefore, having regard to the factual aspect, the penalty of Rs. 5, 000/- imposed under Section 112 was reduced to Rs. Pursuant to a direction from this court, the goods were allowed to be re-exported to Nepal on bank guarantee submitted by the petitioner. However, the writ petition was dismissed on 21-6-1972. Therefore, having regard to the factual aspect, the penalty of Rs. 5, 000/- imposed under Section 112 was reduced to Rs. 1, 800/-, since the goods were not made available for human consumption but were actually re-exported. Therefore, taking a lenient view, the fine came to be reduced to Rs. 1, 800/-. If the order states that it must be construed in lieu of fine, what is meant thereby is to take stock of the factual situation and this has nothing to do with the jurisdiction of the officer. Hence all these writ petitions will stand dismissed with costs. Counsel's fee Rs. 300/- one set.