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1988 DIGILAW 475 (MAD)

K. Subbaraj v. Government of India

1988-12-02

SWAMIKKANNU

body1988
Judgment :- This writ petition coming on for hearing on this day upon perusing the petition and the affidavit filed in support thereof the order of the High Court, dated 4-8-1981 and made herein, and the Counter-affidavit filed herein and the records relating to the order in 1036/81, dated 15-7-1981 on the file of the 1st Respondent comprised in the return of the said respondent to the Writ made by the High Court, and upon hearing the arguments of Mr. K.C. Rajappa, Advocate for the Petitioner, and of Mr. P. Narasimhan, Senior Central Government Standing Counsel for the Respondents herein, the Court made the following order. This is a petition for the issue of a Writ of certiorari calling for the records of the case from the file of the first respondent, namely, the Government of India, represented by the Joint Secretary, Ministry of Finance, Department of Revenue, New Delhi, relating to the order dated 15-7-1981. In order No. 1036 of 1981 and quash the order of the first respondent in Order No. 1036/81, dated 15-7-1981. 2.It is submitted on behalf of the petitioner that the Intelligence Officer of the Customs House declared the three parcel Bearing Nos. 4284, 2147 and 4042 to contain "Donation for temple declaration (decoration ?) glass stones - No Commercial Value". Parcel No. 3906 was declared to contain" Glass Stones - NW" * as per the despatch note attached to the said parcels. All the above four parcels were opened, examined and weighed and the same were found to contain : 1. Parcel No. Singapore-B/4284 Glass chattans 5 kgs., valued at Rs. 2, 500/- c.i.f. 2. Parcel No. Singapore-18/2147 Glass chattans 2.4 kgs., valued at Rs. 1, 200/-c.i.f. 3. Parcel No. Singapore-B Glass chattans 5 kgs., valued at Rs. 2, 500/- c.i.f. 4. Parcel No. Singapore-B Glass chattans 5 kgs., valued at Rs. 2, 500/-. The value of the above parcels had been declared as no commercial value whereas the goods were of high commercial value. Therefore, the parcels were seized under a mahazar under Section 10 of the Customs Act, 1962. 2, 500/- c.i.f. 4. Parcel No. Singapore-B Glass chattans 5 kgs., valued at Rs. 2, 500/-. The value of the above parcels had been declared as no commercial value whereas the goods were of high commercial value. Therefore, the parcels were seized under a mahazar under Section 10 of the Customs Act, 1962. "Shri K. Subbaraj, L. Jayaraman, R. Dhanraj and V. Natarajan were therefore called upon vide this show cause notice dated 1-9-1979 to show cause to the Assistant Collector of Customs (Adjudication) Customs House, Madras-1 within ten days from the date of receipt of this memo as to why the goods value at (1) Rs. 2, 500/- c.i.f. Parcel No.Singapore-B 4284 (2) Rs. 1, 200/- c.i.f. Parcel No.Singapore-B 2147 (3) Rs. 2, 500/- c.i.f. Parcel No.Singapore-B 3906 (4) Rs. 2, 500/- c.i.f. Parcel No.Singapore-B4042 respectively should not be confiscated under Sections 111 (d) and 111(m), Customs Act and why penalty should not be imposed on each of them under Section 112, Customs Act, 1962.' Paragraph 13 of the said order dated 5-12-1979 reads as follows :-" * Shri K. Subbaraj in his reply dated 27-10-1979 hadinter aliastated that he and other senders of the glass stones were devotees of Goddess "ARULMIGU MUNIANHAN AND KALIAMMAN' that the glass stones were for decorating the Sapparam and Tiruvatchi; that the devotees seldom declare the value of their offerings; that correct declaration of the goods was made; that the parcels bearing singapore-B/4284 and Singapore-B/2147 be released to him on payment of duty or send them back to the place of origin; that the parcels 8ingapore-B/3906 and Singapore-B/4042 be returned to the senders. He did not desire to be heard in person' Finally, the Assistant Collector of Customs Adjudication in his above order held that the goods cannot be considered asbona fideand are liable to confiscation and that he is also convinced that Subbaraju is the person concerned in an attempt to import the goods unauthorisedly into the country attracting the penal provisions of Section 112 of the Customs Act, 1962. The said order reads thus :-" * I hereby order that the goods under seizure covered by parcel No. Singapore-B, Singapore-B. Singapore-B. Singapore-B 4284 2147 3906 4042 totally valued at Rs. 8, 700/- c.i.f., be confiscated absolutely under Section 111(d) read with Section 3(2) Imports and Exports (Control) Act, 1947. I impose a penalty of Rs. The said order reads thus :-" * I hereby order that the goods under seizure covered by parcel No. Singapore-B, Singapore-B. Singapore-B. Singapore-B 4284 2147 3906 4042 totally valued at Rs. 8, 700/- c.i.f., be confiscated absolutely under Section 111(d) read with Section 3(2) Imports and Exports (Control) Act, 1947. I impose a penalty of Rs. 500/- on Shri K. Subbaraju under Section 112, Customs Act, 1962. N.B. Personal penalty should be paid forthwith.' 3.Aggrieved by the above order, the petitioner herein preferred an appeal to the Appellate Collector of Customs, Customs House, Madras, and the same was disposed of on 7-4-1981.It is observed in the appellate order as follows : - "It is seen four parcels have been sent by the same person in the guise ofbona fidegift to different persons to the same address and the persons concerned denied any knowledge of the parcels. Therefore, there is a clear attempt at smuggling in glass chattans which are of high value unauthorisedly. The absolute confiscation is in order. The personal penalty is warranted. The appeal is accordingly rejected." * Aggrieved by the above appellate order, the petitioner herein preferred a revision to the Joint Secretary to Government of India, who, by his order dated 15-7-1981, rejected the revision application holding that there is no reason to interfere with the order in appeal passed by the Appellate Collector of Customs which is based on the facts of the case and is correct in law. Aggrieved by the above order in revision passed by the Joint Secretary to the Government of India, the petitioner has preferred this writ petition. 4.Mr. K.C. Rajappa, learned Counsel for the petitioner submits that in order to attract the provisions of Section 111 (d) of the Act, it is but necessary that the articles confiscated should conform to any one of the descriptions of the glass materials described in the Customs Tariff Act, 1975. In other words, the contention raised on behalf of the petitioner is that unless the glass materials that were confiscated in the instant case come within the purview of the description of the clause (glass) and the glassware articles mentioned in Chapter 70 of the Customs Tariff Act, 1975, the procedure adopted by the authorities concerned and the decisions arrived at by the Assistant Collector of Customs, the appellate authority and the revisional authority are all not in accordance with the law. In this regard, learned Counsel for the petitioner submits whether the point is raised or not, it is the duty of the authorities concerned to determine the descriptions of each category of glass material that had been seized and unless the glass and glassware includes also the confiscated materials, the petitioner from whose custody it has been found to emanate, cannot be found guilty under Section 111(d) of the Act. It is also submitted on behalf of the petitioner that the confiscated goods in this case does not come within the sub-heading number and description of articles mentioned in pages 304 and 305 of the Customs Tariff Act, namely, sub-heading Nos. 70.01/16 to 70.21. He further submits that the description of the articles seized do not come within the description of glass and glassware including containers for the conveyance or packing of goods, envelopes for electric lamps, electronic values or the like as mentioned in sub-heading No. 70.01/16 of the Customs Tariff Act or glass beads, imitation pearls, imitation precious and semi-precious stones and similar fancy or decorative glasswares and articles of glassware made therefrom as mentioned in sub-heading no. 70.19. 5.Mr. P. Narasimhan, learned Senior Central Government Standing Counsel appearing on behalf of the department, submits that the purpose for which the articles are stated to have been sent from foreign country to this country by post is for decorating Sapparam i.e., planquin which is used for the purpose of carrying in procession the deity. It is submitted that the authorities concerned have not adverted to this aspect of the matter, namely, whether the confiscated goods come within the exemption notification or whether they conform to any of the sub-heading number of description found in Chapter 70 of the Customs Tariff Act and unless this aspect is clearly gone into and evidence is recorded and a clear finding given, the penal provisions of Section 112 of the Act is not attracted on the basis of Section 111(d). Since there is no determination as to which category the articles come under the clause in Chapter 70 of the Customs Tariff Act, prevailing at the time of confiscation, the proceedings holding the petitioner liable, cannot be upheld as correct and in accordance with law. In this regard, evidence must necessarily find a place in the proceedings of the Asstt. Collector of Customs who has passed the final order. In this regard, evidence must necessarily find a place in the proceedings of the Asstt. Collector of Customs who has passed the final order. Neither the appellate authority nor the revisional authority had adverted to this aspect, namely, that the commodity that had been seized and upon which confiscation proceedings had been taken has necessarily to satisfy the description under Chapter 70 of the Customs Tariff Act so as to proceed under Sec. 111 (d). 6.It is pointed out by Mr. P. Narasimhan, Senior Central Government Standing Counsel that no point to this effect had been taken at any time before and it is for the first time the same is raised in this writ petition by the learned Counsel for the petitioner. It is relevant to note whether this aspect which is a legal aspect has been raised or not before is not germane to the point at issue. It ought to have been gone into by the authorities so as to attract the provisions of Section 111(d). It is also pointed out at this stage that the confiscated goods were sold soon after confiscation. It is basic principle of law that until the entire proceedings, including appeal, revision and other proceedings are over the confiscated goods ought to have been kept because it is only on the basis of the confiscatory nature of the goods, the proceedings can be taken either under Section 111(m) or under Section 111(d). In the instant case, the petitioner has been found contravening the provisions of Section 111 (m) and Section 111(d). Inasmuch as there is no clear finding regarding the nature of the goods seized and confiscated in the instant case and whether the goods conform to any of the items in the sub-heading number of Chapter 70 of the Customs Tariff Act, there cannot be any order passed against the petitioner under Section 111(d). Learned Counsel for the petitioner submits that the case under Section 111(m) of the Act against the petitioner had been given up and it is only under Section 111(d), proceedings had been taken against the petitioner herein. In this regard, learned Senior Central Government Standing Counsel submits that in the present case, the baggage was found to contain glass materials whose value was more than Rs. In this regard, learned Senior Central Government Standing Counsel submits that in the present case, the baggage was found to contain glass materials whose value was more than Rs. 500/- and as such the requirements of the Baggaging Rules and Section 82 of the Customs Act and Section 111(m) were satisfied. 7.This Court is definitely of the view that there must be a clear finding regarding the nature of the glass materials so as to attract the provisions of Section 111(d) of the Customs Act, 1962 read with Section 3(2) of the Imports and Exports Control Act, 1947. In other words, there must be a finding as to which category the confiscated materials belongs under the sub-heading mentioned in Chapter 70 of the Customs Tariff Act. Under the circumstances, the matter has to be remanded to the first respondent to allow the petitioner to adduce evidence regarding the nature of the matter and determine whether the goods seized come within the purview of the descriptions mentioned in Chapter 70 of the Customs Tariff Act. 8.In the result, the writ petition is allowed and the matter is remanded to the first respondent for fresh disposal after affording the petitioner an opportunity to adduce evidence regarding the nature of the materials seized and dispose of the matter in accordance with law. There will, however, be no order as to costs.