JUDGMENT : G.B. Patnaik, J. - Issuance of summons to petitioners 2 to 5 requiring them to produce the documents mentioned in the Schedule annexed to the summons in exercise of powers u/s 108 of the Customs Act, 1962, by the Superintendents (Customs), Central Excise & Customs, Bhubaneswar, annexed as Annexures -12 to 15, is under challenge in this writ application, inter alia, on the ground that the Superintendent (Customs) (opp. party No. 4) had no jurisdiction to issue summons as the conditions precedent for exercise of power u/s 108 are not satisfied. 2. The brief facts are that petitioner No. 1 is a public limited company and petitioners 2 to 5 are its officers. An agreement was entered into between the petitioner-Company and one Siderugia National E.P.(S.N.) Portugal, for purchase of equipment subject to permission from the respective Governments. Petitioners approached the Government of India in the Department of Industrial Development for necessary approval in respect of importation of Blast Furnace equipments as also approval for obtaining engineering and technical documentation from the said S.N. Portugal. The Government of India, Ministry of Industry, Department of Industrial Development, by its letter dated 1-2-1989 accorded approval subject to certain conditions. The petitioners assert that the Government of India had treated the agreement and import in respect of the technical documentation valued at 12.5 million D.M. as a separate transaction. The aforesaid letter of the Government of India has been annexed as Annexure - 2 to the writ application. On receipt of the aforesaid letter, the petitioners made certain request pursuant to which the Government of India also modified its earlier order vide letter dated 26th of May, 1989. The said letter has been annexed as Annexure - 4. The Ministry of Commerce and Industry issued import licence for the import of the Blast Furnace equipments and also granted permission to the petitioner-Company to import related engineering and technical documentation from the said S.N. Portugal. The petitioners then entered into an agreement with the said S. N. Portugal on 11-10-1989 for the sale of equipment, materials and technical documents. Two agreements were entered into namely M.D. 301 for supply of technical documentation and M.D. 302 for sale of equipment and materials. The overall price was fixed at 25 million German Marks out of which 13.5 million German Marks was for equipment and 12.5 million German Marks was for technical documentation. Two agreements were entered into namely M.D. 301 for supply of technical documentation and M.D. 302 for sale of equipment and materials. The overall price was fixed at 25 million German Marks out of which 13.5 million German Marks was for equipment and 12.5 million German Marks was for technical documentation. Pursuant to the aforesaid agreements between the parties, the technical documentation part covered by Agreement M.D. 301 arrived through Calcutta Customs by air-freight which was cleared after complying with all Customs formalities. But the equipment covered by Agreement M.D. 302 arrived in instalments at Paradeep Port. The first instalment arrived at Paradeep in April, 1990 and the petitioners filed the Agreement M.D. 302 under the Project Import Regulations, 1986, with the Customs authorities at Paradeep for registration of the contract. The contract was duly registered under the Import Regulations and 'the first consignment was cleared by the petitioners on payment of duty amounting to Rs. 6,75,23,399/-. The petitioner-Company also furnished Provisional Duty Assessment Bonds for the entire import covered by Agreement M.D. 302 including the subject consignment in the total sum of Rs. 25.06 crores as demanded by the Customs authorities. The second consignment of equipment in respect of the Agreement M.D. 302 arrived at Paradeep Port on 28th of June, 1990, and when the petitioner -Company sought to clear the same on payment of duty and on the basis of the Provisional Duty Assessment Bonds as well as the Bank Guarantees mentioned earlier, opp. party No. 3, the Assistant Collector of Customs at Paradeep, did not permit the petitioner-Company to clear the same on the ground that he would charge duty on the value of technical documentation which was covered by a separate Agreement M.D. 301. On 16th, of July, 1990, the said opp. party No. 3 issued a notice to petitioner No. 1 indicating therein that the TISCO (petitioner No. 1) had not produced the relevant documents while registering their contract in the Customs House and, on the other hand, had produced only the Agreement for Sale of equipment and materials bearing M.D. 302 which represents only a part of the scope of their original sale contract dated 11-10-1989 and thereby did not produce a vital information for determination of the price of the imported goods. It was further indicated in the notice that the petitioner-Company should explain as to why the price for technical documentation valued at D.M. 12.5 million shown in the sale contract dated 11-10-1989 and the price paid for commission to the extent of D.M. 3,40,000/- should not be proportionately added to the price paid or payable for the equipment and materials for Blast Furnace and three 200 tones torpedo ladles to fix the transaction value under Rule 4 read with Rule 9 of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988. The said notice has been annexed as Annexure-6. The petitioner-Company assailed the legality of the aforesaid show cause notice in this Court by filing a writ application which was registered as O.J.C. No. 3052 of 1990 and an application for interim relief for release of the goods had been filed which was registered as Misc. Case No. 4102 of 1990. The writ application was not entertained and was held to be premature since the Customs Authority had not passed any final orders. But in the interim application, this court directed that on petitioner paying a sum of Rs. 1 crore and furnishing a bank guarantee to the tune of Rs. 8 crores, the Assistant Collector of Customs would release the goods in favour of the petitioner forthwith. It was further ordered that the bank guarantee shall not be encashed by the Customs authorities until expiry of three weeks from the date of receipt of assessment order by the petitioner. Pursuant to the aforesaid interim order, the petitioner- Company deposited a sum of Rs. 1 crore and furnished bank guarantee to the tune of Rs. 8 crores and got the consignment released. The petitioner then furnished its reply to the show cause notice issued under Annexure-6. The Assistant Collector called upon the petitioner to be present on 21st of September, 1990, for personal hearing and, in fact, the matter was heard on 21st of September, 1990, but final order with regard to valuation has not been passed by the said Assistant Collector even till today. While the matter was thus pending, the Superintendent of Central Excises & Customs (opp. party No. 4) issued summons to the petitioners 2 to 5 u/s 108 of the Customs Act, annexed as Annexures 12 to 15. While the matter was thus pending, the Superintendent of Central Excises & Customs (opp. party No. 4) issued summons to the petitioners 2 to 5 u/s 108 of the Customs Act, annexed as Annexures 12 to 15. It has been indicated in the said summons that whereas an allegation of under-valuation of Blast Furnace and three Torped Ladle Cars u/s 14 of the Customs Act is being enquired into and whereas the Superintendent (Customs) has reason to believe that petitioners 2 to 5 are in possession of facts/documents and records which are material to the inquiry, therefore, summons is issued u/s 108 of the Customs Act to appear before the said Superintendent (Customs) either in person or by an authorised agent and to give evidence on such matters concerning the inquiry as may be asked and produce documents and records mentioned in the Schedule for the examination of the said authority. Petitioners 2 to 5 along with the petitioner No. 1 thereafter have approached this Court for the reliefs that Annexures 12 to 15 should be quashed and opp. party No. 3 may be directed to pass final order in the pending adjudication proceeding which had been initiated pursuant to notice to show cause dated 16th of July, 1990, annexed as Annexure 6. 3. The main grounds on which the legality of the issuance of the aforesaid summons under Annexures 12 to 15 has been assailed are :- (i) The valuation of goods for the purpose of assessment u/s 14 of the Customs Act being under adjudication by opp. party No. 3 pursuant to his show cause notice under Annexure - 6 and the final hearing in the said adjudication proceeding having been made as early as on 21st September, 1990, and no final order having been passed thereunder, opp. party No. 4 has exercised his powers u/s 108 of the Customs Act on the allegation that he is inquiring into the self-same under-valuation and such purported exercise of power is nothing but a mala fide exercise, inasmuch as there is no whisper that the goods have been smuggled into the country and it is only in an inquiry in connection with the smuggling of goods, the power of issuance of summons u/s 108 of the Customs Act can be exercised. (ii) The petitioner having imported goods after obtaining due permission of the Government of India and Government of India having accepted the two contracts M.D. 301 and M.D. 302 to be independent and separate and documentation having arrived at Calcutta through airfreight and having been released on payment of duty, opp. party No. 4 has exercised his power u/s 108 for ulterior and extraneous purpose and issuance of summons has been made without application of mind to the relevant documents and facts on record and thereby the said issuance of summons is vitiated. (iii) Though opp. party No. 4 in the summons issued has indicated that he has reason to believe that the petitioners are in possession of facts and documents which are material to the above enquiry, but there does not exist an iota of material on which opp. party No. 4 can be said to have entertained a belief about the existence of materials and documents and, on the other hand, he said opp. party No. 4 is making a roving inquiry which is beyond the scope of Section 108 of the Customs Act. 4. Pursuant to the notice issued by this Court, the opposite parties through the Assistant Collector, Central Excise & Customs have filed a return. The stand taken in the counter affidavit is that the Department had come to know that the contract M.D. 302 was actually a part of the main contract designated as Sale Contract dated 11-10-1989 having a total value of 26 million German Marks and it was divided into two sub-contracts, namely M.D. 301 and M.D. 302 by splitting the value which was deliberately done to restrict the levy of customs duty on the F.O.B. value of 13.5 million German Marks. The Department also learnt that the technical documentation relating to M.D. 301 though had been cleared through the Calcutta Customs House by styling the contract in the shape of foreign collaboration and presenting the said goods as classifiable under T.S.H. 490600, but the authorities at Paradeep while examining the materials came to the conclusion that a sum of 12.6 million German Marks has to be included in the F.O.B. value of the goods under M.D. 302 and accordingly notice under the Customs Valuation (Determination of Prices of Imported Goods) Rules, 1988, was issued for determining the value u/s 14 of the Customs Act. While the Assistant Collector has heard the matter, but before passing any final order, the Collector of Customs has passed an order to have a thorough investigation into the matter and, therefore, the necessary enquiry has been taken up by opp. party No. 4. It was further averred that the importer has been made a careful and elaborate planning in preparing the import documents to mislead the Government authorities regarding the nature of transaction and the correct value of the goods imported had not been reflected in the bills of entry presented at Paradeep Port and, therefore, the goods in question attract the provisions for confiscation u/s 111(m) of the Customs Act and, therefore, will be held to be 'smuggled goods' u/s 2(39) of the said Act and since an inquiry is being held in connection with 'smuggling' of goods, the authorities have the power u/s 108 to call upon the petitioners to appear whose attendance the authority considers necessary for production of the documents mentioned in the schedule appended to the summons and as such there is no illegality in the issuance of summons u/s 108 of the Customs Act. 5. In course of hearing of the writ application, Mr. Lahiri, the learned counsel appearing for the petitioners, reiterates his stand taken in the writ application and with sufficient emphasis urges that in the facts and circumstances under which the goods have been imported by obtaining due permission from the Central Government and its officers on full disclosure of the entire transaction, by no stretch of imagination it can be said that the petitioner-Company has been involved in any 'smuggling' of the goods and consequently, the question of any inquiry by any officer in connection with the smuggling of goods does not arise. Since no inquiry in connection with the smuggling of goods is at all possible in the facts and circumstances of the case, the power of issuing summons u/s 108 of the Customs Act cannot be exercised, as the condition precedent for exercise of power is an inquiry in connection with the smuggling of any goods. In the aforesaid premises, Mr. Lahiri contends that the issuance of summons is wholly without jurisdiction and accordingly must be quashed. Mr. In the aforesaid premises, Mr. Lahiri contends that the issuance of summons is wholly without jurisdiction and accordingly must be quashed. Mr. Lahiri further urges that the summons that has been issued under Annexures 12 to 15 having itself indicated that an allegation of under-valuation of Blast Furnace and three Torpedo Ladle Cars is being inquired into by him and such under-valuation having been inquired into by opp. party No. 3 pursuant to notice under Annexure -6, where no final orders have been passed even though the hearing was concluded as early as on 21st of September, 1990, it must be held that the Customs authorities have taken recourse to issuance of summons in purported exercise of their power u/s 108 of the Customs Act mala fide even when conditions precedent for exercise of that power are absent and, therefore, this Court must quash the said summons. 6. The learned Standing Counsel for the Union Government, on the other hand, argues that on the materials, the authorities having been satisfied about the alleged under-valuation and under the order of the Collector (Customs), the entire inquiry which had been made by opp. party No. 3 having been taken over by the Headquarters in the Collectorate and a thorough inquiry being conducted, opp. party No. 4 was fully within his powers to issue summons u/s 108 requiring petitioners 2 to 5 to produce documents in their custody. His further submission is that merely because opp. party No. 3 had issued a show cause notice to determine the valuation of the imported goods and in that proceeding he had heard the petitioners, that would not fetter the powers of the authorities to hold an inquiry in connection with 'smuggling' of goods. His further submission is that merely because opp. party No. 3 had issued a show cause notice to determine the valuation of the imported goods and in that proceeding he had heard the petitioners, that would not fetter the powers of the authorities to hold an inquiry in connection with 'smuggling' of goods. Since 'smuggling' has been defined in Section 2(39) in relation to any goods to mean, any act or omission which will render such goods liable to confiscation u/s 111 and since Section 111(m) clearly indicates that the goods brought from a place outside India which do not correspond in respect of value or any other particulars with an entry made under the Act shall be liable to confiscation, and since the Customs authorities prima facie have taken the view that the goods imported pursuant to agreement M.D. 302 have to be valued not only on the basis of value indicated in the said agreement, but also the value indicated in M.D. 301, which is apparent from the original sale agreement dated 11-10-1989, the goods imported are liable to be confiscated u/s 111(m) and therefore, would come within the mischief of the definition of 'smuggled goods' u/s 2(39). When an inquiry is being held in relation to the aforesaid transaction, the Customs Authority has the power to issue summons u/s 108 and, therefore, there is no justification in the argument of the petitioners' counsel that there was no basis for issuing summons u/s 108. 7. In view of the rival stand of the parties, the moot question that arises for consideration is the nature of the power of the Customs Authorities u/s 108 of the Customs Act and the circumstances under which such power can be exercised, and further in the facts and circumstances of the present case, can it be said that the issuance of summons under Annexures 12 to 15 is without jurisdiction? The provision of Section 108 of the Customs Act has been engrafted conferring power on the Customs authorities to compel a person who is in possession of the relevant information to part with the same obviously to prevent/check evasion of customs laws. A Customs Officer has been given this power to interrogate any person in connection with smuggling of any goods which it is his duty to prevent. A Customs Officer has been given this power to interrogate any person in connection with smuggling of any goods which it is his duty to prevent. What is called 'summons' u/s 108 of the Customs Act is not really summons under the Civil or Criminal Procedure Code by any Court. It is, in fact, a power given to the Customs Officer to call upon the person either to give evidence or produce documents in his custody which the Customs Officer believes would have a vital bearing in the inquiry he has undertaken. The provision acknowledges the necessity of persons being summoned for giving evidence in the proceedings under the Act including adjudication proceedings and the only limitation contemplated u/s 108 is that the persons to be summoned must be such as the authority issuing the summons considers necessary. 8. The Customs authorities have their duty to check evasion, to discover illegal imports and to award deterrent administrative punishment to the smuggler to make it not worthwhile for him to smuggle. To achieve all these objectives for due performance of their duties, it is necessary to confer power on them to obtain informations and with this end in view, the provisions of Section 108 have been engrafted into the statute. Considering the provisions of Sections 107 and 108 of the Customs Act in the case of Balkrishna Chhaganlal Soni Vs. State of West Bengal their Lordships of the Supreme Court have observed that the object of Section 107, located in the neighbourhood of Section 108 indicates that while the normal process of inquiry is facilitated by Section 108, investigatory emergencies are taken care of by Section 107. May be situations arise where failure to question a witness quickly may mean irretrievable loss of a valuable material and Section 107 meets this object. Thus, it is apparent that the power has been conferred on the Customs authorities u/s 108 for facilitating normal process of inquiry. While the country was facing a great economic crisis and smuggling activities had a disastrous impact on the country's economy, the Legislatures have brought in several laws with an effort to stabilise the country's economy. The legal hardware has not been able to halt the invisible economic aggressor inside as the smugglers, hoarders and adulterators have been busy in their under-world activities. The legal hardware has not been able to halt the invisible economic aggressor inside as the smugglers, hoarders and adulterators have been busy in their under-world activities. Justice Krishna Iyer while dealing with a case relating to offence committed under the provisions of the Customs Act had observed that the wave of white collar crime must disturb the Judges' conscience. While, therefore, the provision contained in Section 108 of the Customs Act must be interpreted bearing in mind the aforesaid laudable objective for which it has been engrafted in the statute, but by no means it can be construed to authorise the Customs authorities from deviating the legal path or over-stepping the legal restraints in their effort to curb the smuggling activities. The Customs officials while acting under the provisions of the Customs Act should, therefore, ensure that the procedural safeguards are not impaired in any manner. It is in this context we are called upon to examine the submission of Mr. Lahiri, the learned counsel for the petitioners, that in the absence of any inquiry in relation to the smuggling activities of the petitioners, the question of invoking the powers u/s 108 does not arise. 9. Section 108 of the Customs Act is extracted herein below in extenso for better appreciation of the point in issue : - "108. Power to summon persons to give evidence and produce documents : (1) Any gazetted officer of customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making in connection with the smuggling of any goods. (2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned. (2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned. (3) All persons so summoned shall be bound to attend either in person or by an authorised agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and produce such documents and other things as may be required : Provided that the exemption u/s 132 of the Code of Civil Procedure, 1908 (5 of 1908), shall be applicable to any requisition for attendance under this section. (4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of Section 193 and Section 228 of the Indian Penal Code (45 of 1860)." It is undoubtedly true that the authorities under the Act have the power to summon persons whose attendance they consider necessary either for giving evidence or to produce documents in any inquiry which the said officer is making in connection with the smuggling of any goods. The expression "smuggling" has been defined in Section 2(39) to mean any act or omission which will render the goods liable for confiscation u/s 111. The stand of the Department in the present case is that the inquiry in question has been directed to find out whether the value of the goods corresponds to the value declared by the importer, namely the petitioner-Company. As has been stated earlier, the positive case of the Department is that though apparently the value of the goods has been declared to be the value as contained in M.D. 302, but factually the value should be the combined value of M.D. 302 and M.D. 301 and it is in that connection a thorough inquiry has been ordered by the Collector of Customs and in course of such inquiry, opp. party No. 4 has issued summons u/s 108 of the Customs Act. party No. 4 has issued summons u/s 108 of the Customs Act. If the goods imported under M.D. 302 are found to have been given valuation which does not correspond to the valuation given by the importer, then certainly it would attract the mischief of Section 111(m) of the Customs Act and thereby it would be held to be "smuggled goods" within the ambit of Section 2(39) of the said Act and necessarily, therefore, such an inquiry must be held to be an inquiry in connection with the "smuggling of goods". In this view of the matter, we are unable to persuade ourselves to agree with the submission of Mr. Lahiri, the learned counsel for the petitioners, that the pre-conditions contained in Sub-section (1) of Section 108 have not been satisfied in the present case, nor can we hold that there has been mala fide exercise of power. In course of hearing of this case, Mr. Lahiri with great force had argued that the Tatas cannot be said to be involved in smuggling activities and the impugned notices are nothing but a harassment to the high ranking officers of the Company. As has been stated by us earlier, at the stage where Customs Officer issues summons u/s 108, the person to whom the summons is issued is not an "accused" nor has there been any determination that the activities of the petitioner-Company amount to smuggling. But the inquiry with regard to under-valuation which the Customs Officer has undertaken would come within the technical expression "smuggling" as defined in Section 2(39) of the Act, as has been held by us earlier. At this stage, the Court is not concerned with the question whether the petitioner-Company has involved itself with any smuggling activities. What we are concerned with is whether the inquiry undertaken by the Customs Officer can be said to be an inquiry in relation to any smuggling of goods, as defined in Section 2(39) of the Act. The status of the petitioner-Company is of no consequence. It would be appropriate for us in this connection to quote a passage from the judgment of Abhyankar, J, while dealing with a case on Imports & Exports Control Act, reported in State Vs. Drupati Sahijisingh Bhawnani, which was endorsed by the Supreme Court in Balkrishna Chhaganlal Soni Vs. The status of the petitioner-Company is of no consequence. It would be appropriate for us in this connection to quote a passage from the judgment of Abhyankar, J, while dealing with a case on Imports & Exports Control Act, reported in State Vs. Drupati Sahijisingh Bhawnani, which was endorsed by the Supreme Court in Balkrishna Chhaganlal Soni Vs. State of West Bengal, :- "A serious view must therefore be taken of such offences which show a distressingly growing tendency. The argument that the accused comes from a respectable or high family rather emphasises the seriousness of the malady. If members belonging to high status in life should show scant regard for the laws of this country which are for public good, for protecting our foreign trade or exchange position of currency difficulties, the consequential punishment for the violation of such laws must be equally deterrent. The offences against export and import restrictions and customs are of the species of 'economic' crimes which must be curbed effectively." In this view of the matter, we do not find any substance in the submission of Mr. Lahiri appearing for the petitioners on this score. 10. Mr. Lahiri also urged that an adjudication proceeding having been initiated by Assistant Collector to determine the valuation u/s 14 of the Act and keeping the said matter pending, it was not within the powers of the Collector to direct a further inquiry into the matter in which inquiry opp. party No. 4 has issued the necessary summons. This argument does not appeal to us in any manner. The power of the Collector of Customs to order for confiscation is not taken away in any manner even after an adjudication is made. That apart, there is no provision in the Customs Act which forbids the Collector of Customs to get any case transferred to him for any thorough inquiry even if the case was being heard by any subordinate authority. Neither there is any impropriety in the Collector's action nor is there any illegality in the same. As has been indicated in the counter affidavit filed by the Department, the Collector of Customs has ordered for a thorough inquiry into the matter in respect of the transactions in question and it is because of this an inquiry has been taken up by opp. party No. 4, and in the process of such inquiry, the summons has been issued. party No. 4, and in the process of such inquiry, the summons has been issued. We do not find any infirmity in the aforesaid approach of the Collector, nor can we hold that the Collector lacked jurisdiction in the matter. In this view of the matter, the contention of Mr. Lahiri must be rejected. After applying our mind to the letter of the Government of India under Annexure-2, it is difficult for us to accept the submission of the learned counsel for the petitioner that Government of India accepted and treated the import of technical documentation as a separate transaction. On the other hand, the said letter indicated that the tax liability was to be borne by the Indian Company. Further, the said permission accorded by Annexure-2 cannot in any way fetter the power of the Customs Authority for determining the valuation of imported goods to decide the leviability of Customs duty. The submission of Mr. Lahiri on this score is accordingly rejected. 11. In the aforesaid premises, we do not find any merits in this application which is accordingly dismissed. But since by virtue of our interim order dated 20-11-1991, the summons issued by the Superintendent of Excise against petitioners 2, 3, 4 and 5 had not been enforced and the date indicated in the summons has already expired, opp. party No. 4 may issue fresh summons giving a fresh date in accordance with law. We make no order as to costs. Final Result : Dismissed