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1993 DIGILAW 280 (CAL)

HRIDAYANANDA GUPTA v. STATE OF WEST BENGAL

1993-06-15

PARITOSH KUMAR MUKHERJEE

body1993
P. K. MUKHERJEE, J. ( 1 ) -THIS is a revisional application under Article 227 of the Constitution of India, arising out of an order passed by Shri J. K. Kohli, Member, Board of Revenue, dated September 12, 1989, arising out of the Certificate Proceedings for recovery of Rs. 5,000/- which was imposed as penalty on the petitioner by the Collertor of Customs and Central Excise. ( 2 ) AT the time of admission of the writ petition, A. K. Nandy, J. (as His Lordship then was), directed the petitioner to deposit a sum of Rs. 3,300/- with the Registrar, Appellate Side of this Court, without prejudice to the rights and contentions of the petitioner and the Registrar was directed to keep the said amount in an account wherefrom the amount may be readily refunded either to the petitioner or to the Government for appropriation, under the direction of this Court. ( 3 ) THIS writ petition has come up for final hearing before me on June 2, 1992 and on subsequent dates in the presence of Mr. Sukumar Guha and Mr. Rabin Pal, learned Advocates for the petitioner, but no one had appeared on behalf of the State respondents. ( 4 ) THE facts of the case is as follows :-according to the petitioner, on July 8, 1965, the petitioner went to the house of one Jatin Pal of Basirhat for finalising the purchase of a shop at Basirhat at Rs. 1,700/ -. The petitioner went there accompanied by one Amar Nath Sukla and others with cash of Rs. 1,700/- in his ambassador car No. WBC 6517. The purchase could not be finalised, as the said Jatin Pal was not present and his son Niranjan Pal could not complete the transaction. The cat of the petitioner went out of order and it took a considerable time to repair the car and ultimately the petitioner left Basirhat for Calcutta at about 1-50 hours in the midnight of July 9, 1965. ( 5 ) ACCORDING to the petitioner, tire aforesaid car again went out of order after the petitioner reached Kholapota, at a distance of 5 miles from Basirhat. As such, the petitioner and his companions had to halt at Kholapota for the night. ( 6 ) IN the meantime, some Customs Officers came and searched the said ambassador car of the petitioner wherefrom nothing incriminating was recovered. As such, the petitioner and his companions had to halt at Kholapota for the night. ( 6 ) IN the meantime, some Customs Officers came and searched the said ambassador car of the petitioner wherefrom nothing incriminating was recovered. The Customs Officers, however, detained the petitioner and his companions till 4. 45 A. M. over which there was hot exchange of words and as such out of grudge, according to the petitioner the Customs Officers took the petitioner to Basirhat Police Station early in the morning. ( 7 ) FURTHER, according to the petitioner, on the way to Basirhat Police Station, in between Kholapota and Basirhat, one tempo Van No. WBV 1157 was found coming from Basirhat towards Barasat, when the Customs Officers detained the said Tempo Van and on search, could recover 8 packets of cinnamon therefrom. The said Customs Officers, then took two packets of cinnamon from the said Tempo Van and put the same inside the seat of the said ambasador car of the petitioner being No. WBC 6517, in spite of protest of the petitioner and his companions and forwarded petitioner and his companions to the Sub-Divisional Judicial Magistrate, Basirhat, on false allegation that two packets of cinnamon had been found in the said ambassador car wherein the petitioner was travelling. ( 8 ) THEREAFTER, a show cause notice bearing Memo. No. C. No. VIII (10)/ 86/cus/wb/65 dated September 7, 1965 was issued against the petitioner asking him to show cause as to why penalty should not be imposed upon him for carrying in the said ambassador car, currency notes and two packets of cinnamon, imported illegally and in violation of Import Control Order, 1955 and the allied provisions of the Imports and Exports (Control) Act, 1947 and the Customs Act, 1962. ( 9 ) THE petitioner gave reply to the said show cause notice and after personal hearing, the Collector of Customs and Central Excise, on disbelieving the testimony of the witnesses of the petitioner, by an order dated November 11, 1965, passed in the Adjudication proceeding being No. CV-III (10)86cus/wb/65, imposed a personal penalty to the extent of Rs. 5,000/-, upon the petitioner in exercise of power under section 112 of the Customs Act, 1962 (hereinafter referred to as the said Act ). The Collector of Customs, however, ordered to refund the said currency notes of Rs. 5,000/-, upon the petitioner in exercise of power under section 112 of the Customs Act, 1962 (hereinafter referred to as the said Act ). The Collector of Customs, however, ordered to refund the said currency notes of Rs. 1,700/- to the petitioner, seized from him on July 8, 1965. ( 10 ) BEING aggrieved and dissatisfied with the said order dated November 11, 1965, passed by the Collector of Customs, West Bengal, the petitioner preferred an appeal under section 128 of the said Act, before the Central Board of Excise and Customs. ( 11 ) AS per provisions of section 131 of the said Act, any person aggrieved and dissatisfied with the order passed under section 128 of the said Act, may file an application for revision by the Central Government and that such application should be made within six months from the date of communication of the order against which the application is made. ( 12 ) UNFORTUNATELY, as no fate of the appeal, under section 128 of the said Act was ever communicated to the petitioner, against such purported non-communication of the order passed in the appeal under section 128, the petitioner filed a revisional application before the Central Government, under section 131 (1) of the said Act. ( 13 ) IN the meantime, the original proceeding drawn up against the petitioner in correction with the alleged carrying of cinnamon, ended in discharge, in the criminal Court and against the order of discharge the Assistant Collector of Customs moved a criminal revisional application being Crl. Rev. No. 156 of 1969 before this Hon'ble Court and Hon'ble Mr. Justice Bagchi (as His Lordship then was), upheld the said order of discharge and the said criminal proceeding reached its finality in favour of the petitioner. ( 14 ) IN the meantime, the Assistant Collector of Customs, Krishnagar, made an application under section 5 of the Bengal Public Demands Recovery Act, 1913, for realisation of the amount of Rs. 5,000/-, imposed upon the petitioner as "penalty. " ( 15 ) MR. Sukumar Guha, appearing with Mr. Rabin Pal, learned Advocates for the petitioner submitted that the petitioner having been discharged from criminal court and the order of discharge having been upheld by this Hon'ble Court, in the Criminal Revisions] Jurisdiction, prima facie no case has been made out against the petitioner. ( 16 ) FARTHER, according to Mr. Sukumar Guha, appearing with Mr. Rabin Pal, learned Advocates for the petitioner submitted that the petitioner having been discharged from criminal court and the order of discharge having been upheld by this Hon'ble Court, in the Criminal Revisions] Jurisdiction, prima facie no case has been made out against the petitioner. ( 16 ) FARTHER, according to Mr. Guha, in view of the decision of the Supreme Court in the case of Mahant Abhey Dass v. Gurdial Singh, reported in A. LR. 1971 S. C. , page 834, as. no prima facie case has been made out against the petitioner, the Collector of Customs, should not have imposed "any penalty," upon the petitioner. ( 17 ) THEREAFTER, Mr. Guha submitted that non-communication of the appellate order in the appeal preferred by the petitioner under section 128 of the said Act, before the Central Board of Excise and Customs, the matter not having been reached its finality, the Customs authorities have no jurisdiction to take steps for realisation of the aforesaid amount of Rs. 5,000/by recovery process, under the provisions of Bengal Public Demands Recovery Act, 1913, as it was done is the present case. ( 18 ) MR. Guha further submitted that according to the provisions of section 142 (1) (a) of the Customs Act, where any penalty payable by any person under the Act is not paid, the proper Officer may deduct or may require any other Officer of the Customs to deduct the amount so payable from any money owing to the person which may be under the control of the proper Officer or such other officer of the Customs. ( 19 ) MR. Guha also submitted that although the Collector of Customs passed the order to refund the cash of Rs. 1,700/-, seized from the petitioner, stated as aforesaid, the same being not refunded, the Customs Officer acted illegally in taking steps for drawing up a Certificate proceedings for recovering the sum of Rs. 5,000/- from the petitioner, in clear violation of the provisions of section 142 (1) (a) of the said Act. ( 20 ) LASTLY, Mr. Guha submitted that the initiation of the Certificate proceedings and the final order passed in Revision by the Member, Board of Revenue, was entirely without jurisdiction and as such, is liable to be set aside and quashed and the petitioner is entitled to obtain refund of the amount of Rs. ( 20 ) LASTLY, Mr. Guha submitted that the initiation of the Certificate proceedings and the final order passed in Revision by the Member, Board of Revenue, was entirely without jurisdiction and as such, is liable to be set aside and quashed and the petitioner is entitled to obtain refund of the amount of Rs. 3,300/- deposited with the Registrar, Appellate Side of this Court vide order dated February 2, 1990. ( 21 ) NO one appears to contest the aforesaid submissions do behalf of the opposite parties. ( 22 ) I have gone through the records of this case meticulously and I have gone through the ultimate order passed by the Member, Board of Revenue and I am of the view that imposition of penalty by the Collector of Customs was patently bad and the main matter not having been disposed of by the appellate and/or appropriate authority, the proceeding for recovery of the aforesaid amount of penalty of Rs 5,000/-, under the provisions of the Bengal Public Demands Recovery Act, 1913, initiated by the Assistant Collector of Customs, was also illegal and bad and the same is liable to be quashed. ( 23 ) THE Certificate issued by the Certificate Officer, for realisation of the aforesaid amount of Rs. 5,000/- is accordingly quashed. ( 24 ) THE ultimate order passed in Revision case No. 20 of 1988 dated September 12, 1989, rejecting the revisional application is also quashed. ( 25 ) THE petitioner will be entitled to apply for refund of the sum of Rs. 3,300/-, which is lying deposited with the Registrar, Appellate Side of this Court, in terms of the order dated February 2, 1990. ( 26 ) THE petitioner will also be entitled to apply for refund of Rs. 1,700/-, which has been seized from him on July 8, 1965, by the customs authorities. ( 27 ) THE revisional application is allowed to the extent, indicated above. ( 28 ) LET Xerox copy of this order be supplied to the learned Advocate for the petitioner, upon observing all formalities. Application allowed.