J. K. Sharma v. Government of India — 1992 DIGILAW 652 (MAD)

Judgment :- The Order of the Court is as follows:- This writ petition is for the issue of a, writ of certiorarified mandamus to call for the records relating to Order No. 29-A/85 of the Government of India on Customs Revision application and quash the order dated 28-10-1985, and for consequential direction to the third respondent to return 158 semi precious stones seized from the petitioner and the penalty of Rs. 1, 000/- paid by him. 2.In the view I propose to take, it is not necessary for setting out in detail the facts, the contentions and the findings of the authorities below. 3.However, the short facts that are necessary for disposing of this writ petition are as follows :- On information, the Customs authorities recovered 158 semi precious stones weighing 720 carats belonging to the petitioner herein, from R.M.S. Office on 18-9-1979 along with 27 other items. After the recovery, the petitioner was served with a show-cause notice by the third respondent to show-cause why the goods, namely, 158 semi precious stones should not be confiscated. The third respondent, by an order dated 4-5-1981, confiscated the 158 numbers of semi precious stones under Section III(d) of the Customs Act, 1962 read with Section 3(2) of the Imports and Exports (Control) Act, 1947. The third respondent also levied a penalty of Rs. 1, 000/-. Aggrieved by that Order, the petitioner herein preferred an appeal to the Board of Central Excise and Customs. The Appellate Board ultimately remanded the matter to the third respondent on the ground that the petitioner was not given reasonable opportunity to examine the witnesses. Still aggrieved, the petitioner preferred Revision to the first respondent. The first respondent, by order dated 28-10-1985, dismissed the Revision Petition. Aggrieved by that, the present writ petition is filed. 4.Mr. Hajee PK. Jamal Mohammed, learned counsel appearing for the petitioner, submitted that after the notified date, the Government of India will have no jurisdiction to deal with the Revision filed by the petitioner. For this, he placed reliance on Section 131B of the Customs Act, 1962. One other ground was also taken by the learned counsel foe the petitioner to challenge the order of the first respondent, and that is, the petitioner was not given a personal hearing which vitiates the order of the first respondent. 5.On the first ground, Mr. For this, he placed reliance on Section 131B of the Customs Act, 1962. One other ground was also taken by the learned counsel foe the petitioner to challenge the order of the first respondent, and that is, the petitioner was not given a personal hearing which vitiates the order of the first respondent. 5.On the first ground, Mr. K. Jayachandran, learned Additional Central Government Standing Counsel, submits that in matters relating to absolute confiscation without an option for paying redemption fine, even now the proper revisional Authority is the Government of India and, therefore, the learned counsel for the petitioner is not right in contending that it is the Tribunal which has jurisdiction to deal with the matter. So far as the second contention is concerned, he agrees that the failure of the Government of India to give personal hearing to the petitioner, vitiates the order. 6.Mr. Hajee P, K. Jamal Mohammed, in reply to the first submission, contended that the learned counsel for the Revenue is not right in contending that in matters relating to absolute confiscation, still the Government of India is the revisional authority. According to the learned counsel, that clause (a) of Section 131B(2) is subject to a qualification, namely, if the value of the subject matter is within Rs. 1O, OOO/-, then only the Government of India will have revisional jurisdiction. If the value exceeds Rs. 10, 000/-, then the proper authority is the Appellate Tribunal. In this case, the value is more than Rs. 10, 000/-. 7.To appreciate the rival submissions, it is necessary to set out Section 131B(2) of the Customs Act, 1962. It reads as follows :-"131B. Transfer of certain pending proceedings and transitional provisions. If the value exceeds Rs. 10, 000/-, then the proper authority is the Appellate Tribunal. In this case, the value is more than Rs. 10, 000/-. 7.To appreciate the rival submissions, it is necessary to set out Section 131B(2) of the Customs Act, 1962. It reads as follows :-"131B. Transfer of certain pending proceedings and transitional provisions. (1) x x x (2) Every proceeding which is pending immediately before the appointed day before the Central Government under Section 131, as it stood immediately before that day, and any matter arising out of or connected with such proceedings and which is so pending shall stand transferred on that day to the Appellate Tribunal and the Appellate Tribunal may proceed with such proceeding or matter from the stage at which it was on that day as if such proceeding or matter were an appeal filed before it: Provided that if any such proceeding or matter relates to an order where - (a) the value of the goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under Section 125; or (b) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or (c) the amount of fine or penalty determined by such order, does not exceed ten thousand rupees, such proceeding or matter shall continue to be dealt with by the Central Government as if the said Section 131 had not been substituted: provided further that the applicant or the other party may make a demand to the Appellate Tribunal that before proceeding further with the proceeding or matter, he may be re-heard.' If the contention of the learned Additional Central Government Standing Counsel is correct, clause (b) to the proviso cannot be given any meaning. Unless the ceiling of Rs. 10, 000/- is applied to clause (b), we cannot give any meaning to clause (b). If the ceiling of Rs. 10, 000/- applies to clause (b), naturally it applies to clause (a) also. In other words, the ceiling of Rs. 10, 000 /-applies to each clause independently. Unless the ceiling of Rs. 10, 000/- is applied to clause (b), we cannot give any meaning to clause (b). If the ceiling of Rs. 10, 000/- applies to clause (b), naturally it applies to clause (a) also. In other words, the ceiling of Rs. 10, 000 /-applies to each clause independently. Therefore, I am of the view that the contention of the learned Additional Central Government Standing Counsel that the ceiling applies only to clause (c) is not correct. Apart from that, after clauses (a) and (b), there are semi-colons and after clause (c), there is a comma, which also supports the contention advanced by the learned counsel for the petitioner. Inasmuch as the impugned Order of the Government of India is without jurisdiction, and further, it also suffers from the violation of principles of natural justice, in the sense that it was passed without giving the petitioner an opportunity of personal hearing, there is no difficulty in setting aside the impugned Order. Accordingly, the order passed by the first respondent is quashed. The writ petition is allowed, and the matter is remanded to the concerned Appellate Tribunal for further hearing. The concerned Appellate Tribunal will take on its file, the file relating to Order No. 29-A/85 and dispose of the same in accordance with law, after giving reasonable opportunity to the petitioner, within four months from this date. No costs.Writ Petition No. 1398 of 1986 Venkataswami, J. - This matter is posted "for being spoken to" at the instance of the Court. After hearing learned counsel on both sides, it is felt that no further orders are necessary in this matter. The Order already passed will stand except to the fact that the time limit of four months will commence from today.