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2010 DIGILAW 226 (GAU)

ART International v. Union of India

2010-03-26

I.A.ANSARI

body2010
JUDGMENT I.A. Ansari, J. 1. Some of the material facts, which are not in dispute, may noted at the outset. 2. The petitioner herein is sole proprietorship concern engaged in the business of import of ready-made garments and clothings. The petitioner holds a valid Certificate of Importer-Exporter Code (IEC) for running its business. By order, dated 24.8.2008, issued by the office of the Assistant Commissioner, Customs Division, Dhubri, the petitioner was given permission to import ready-made garments from Bangaldesh through various Land Customs Stations of North East including Mankachar Mahendraganj Land Customs Station. 3. Pursuant to the permission, so granted, the petitioner entered into a contract of sale, on 2.1.2009, with M/s. Friends International, a firm engaged in the manufacture of ready-made garments, with its address at 29-C Asad Avenue, Mohammadpur, Dhaka, Bangladesh, whereunder it was agreed, between the parties concerned, that M/s. Friends International would supply 1,50,000 pieces and 15,000 Kgs. of ready-made garments for a consideration amount of (US Dollars) $ 2,50,000 within a period of one year, through various land customs stations. Pursuant to the said contract for sale, payment, in advance, for the first consignment, was made by the petitioner by telegraphic transfer (in short, TT transfer) through the petitioner's banker HDFC Bank, on 10.2.2009, for (US Dollars) $ 4,400. A commercial invoice, dated 19.2.2009, was issued by M/s. Friends International in favour of the petitioner for a part of the first consignment, the consignment being of 2,108 pieces of ready-made garments for a consideration amount of (US Dollars) $ 600. Pursuant thereto, a Bill of Entry for home consumption, dated 28.2.2009, was given by the petitioner to the Customs Department and, after joint inspection of the goods, which was imported by the petitioner, the petitioner's representative received, from the customs officials, the imported garments, free from any discrepancy, and paid, on 3.3.2009, the requisite import duty of Rs. 1,619/-. Thereafter, another commercial invoice, dated 27.2.2009, was issued by M/s. Friends International in favour of the petitioner for second part of the first consignment, i.e., 16,900 pieces (112 Bales) for a consideration amount of (US Dollars) $ 3,800. The said consignment reached Mankachar Land Customs Station on 4.3.2009. The controversy, as regard the events, which followed the arrival of the consignment on 4.3.2004, at Mankachar Land Customs Station, constitutes the basis of this writ petition. 4. Heard Mr. The said consignment reached Mankachar Land Customs Station on 4.3.2009. The controversy, as regard the events, which followed the arrival of the consignment on 4.3.2004, at Mankachar Land Customs Station, constitutes the basis of this writ petition. 4. Heard Mr. K.N. Choudhury,learned senior counsel, appearing on behalf of the petitioner, and Mr. D. Das, learned standing counsel, appearing on behalf of the respondents. 5. Considering the fact that in a writ proceeding, under Article 226, it is inappropriate, except in deserving cases, to enter into determination of disputed questions of fact, let me digress and look into what the respondents say as regards the events of 4.3.2009 and thereafter. The respondents' version, in this regard, as it appears in the respondents' affidavit-in-opposition, is reproduced below : 3(i) A specific information was received on 4.3.2009 at about 16.30 hours that a consignment of ready-made garments imported from Bangladesh through Mankachar Land Customs Station by one M/s. ART International of Barasat, Kolkata, has been grossly mis-declared in respect of quantity, contents, classification and value. The goods have entered India and stored in a private godown of one Mohammad Hussain, situated near Mankachar Bazar, Mankachar, To examine the veracity of the information and for rough screening of the same information, a telephonic call was made to the Superintendent of Mankachar Land Customs Station who in response informed that a consignment of ready-made garments have entered India which was not given clearance due to darkness. The Superintendent of Mankachar Land Customs Station was then telephonically directed not to give clearance of the imported consignment until and unless officers from Headquarter, Shillong, reach Mankachar. (ii) In pursuance to the above information, the officers of Headquarter Preventive Unit, Shillong, proceeded for Mankachar on 5.3.2009 at about 7.00 hours and reached Mankachar at about 18.00 hours on 5.3.2009. The Superintendent of Land Customs Station (hereinafter referred to as LCS) at Mankachar was available in the office. A team of officers from Dhubri Customs Divisional Office was also present as per arrangement and direction of Customs Headquarters Office, Shillong. (iii) On being requested to furnish all the documents relating to the consignment of ready-made garments imported by M/s. ART International, Barasat, Kolkata on 4.3.2009, the Superintendent of Mankachar LCS produced the following documents : (a) Copy of Sale Contract No. F1/ART/001/09, dated 2.1.2009 executed between M/s. Friends International, Dhaka, Bangladesh, and M/s. ART International, Barasat, Kolkata, India. (iii) On being requested to furnish all the documents relating to the consignment of ready-made garments imported by M/s. ART International, Barasat, Kolkata on 4.3.2009, the Superintendent of Mankachar LCS produced the following documents : (a) Copy of Sale Contract No. F1/ART/001/09, dated 2.1.2009 executed between M/s. Friends International, Dhaka, Bangladesh, and M/s. ART International, Barasat, Kolkata, India. (b) Copy of certificate of origin dated 27.2.2009 issued by the Secretary General, Metropolitan Chamber of Commerce and Industry, Dhaka, Bangladesh, bearing PC No. 1239 (Enclosed and marked as Annexure-I). (c) Commercial Invoice No. FI/ART/04/09 dated 27.2.2009 issued by M/s. Friends International, Dhaka, Bangladesh, to M/s. ART International, Barasat, Kolkata, India. (d) Consignment Delivery Challan No. FA/04/09 dated 27.2.2009 issued by M/s. Friends International, Dhaka, Bangladesh, to M/s. ART International, Barasat, Kolkata, India (Enclosed and marked as Annexure-II). (e) Transport/Road Challan No. 02 dated, 4.3.2009 issued by M/s. Friends International, Dhaka, Bangladesh, to M/s. ART International, Kolkata, India. (f) Packing list dated nil for 108 bales of ready-made garments issued by M/s. Friends International, Dhaka, Bangladesh, to M/s. ART International, Kolkata, India. (iv) The Superintendent, Mankachar LCS further informed that the consignment of ready-made garments imported on 4.3.2009 by M/s. ART International, Kolkata, have been stored in the private godown on behalf of premises of one Md. Hussain near Mankachar Bazar, Mankachar. Superintendent, LCS, Mankachar, also presented a letter dated 4.3.2009 of Shri Shadhan Dey, the authorized signatory of M/s. ART International, Kolkata, praying for joint inspection on the ground that the goods were loaded by the exporter. (v) Thereafter physical verification of the said consignment was conducted by the customs officers in presence of Shri Shadhan Dey, two independent witnesses and officers of Mankachar LCS from 6.3.2009 to 8.3.2009 which resulted in the recovery of 28932 (twenty-eight thousand nine hundred thirty-two) pieces of ready-made garments as declared against 16900 (sixteen thousand nine hundred) pieces of ready-made garments in the covering documents issued by the exporter M/s. Friends International, Dhaka, Bangladesh, to the importer M/s. ART International, Barasat, Kolkata, India viz.: (a) A copy of certificate of origin dated 27.2.2009, issued by the Secretary General, Metropolitan Chamber of Commerce and Industry, Dhaka, Bangladesh, bearing PC No. 1239, where there was mention of a total quantity of 16900 pcs of ready-made garments. (b) Commercial Invoice No. FI/ART/04/09 dated 27.2.2009 issued by M/s. Friends International, Dhaka, Bangladesh to M/s. ART International, Barasat, Kolkata, India, where there was mention of 112 bales containing 16900 pcs of ready-made garments. (c) Delivery Challan No. FA/04/09 dated 27.2.2009, where there was mention of 112 bales containing 16900 pcs of readymade garments. (vi) Thus, a total 12032 (twelve thousand thirty-two) pieces of ready-made garments were recovered as excess from what the exporter M/s. Friends International, Dhaka, Bangladesh, had declared in their relevant export documents which is an evidence of deliberate misdeclaration and the excess quantity found also squarely confirmed the information which was received at Customs Headquarters Office, Shillong 4.3.2009. (vii) The physical examination conducted by the officers revealed that the consignment was grossly misdeclared in terms of contents, quantity and value and as such was reasonably believed to be liable for confiscation under Sections 111(d) and 111 of the Customs Act, 1962. As such, the consignment was seized under Section 110 of the Customs Act, 1962 after observing all requisite formalities. Seizure was effected from the immediate possessor of the goods Md. Hussain of Mankachar. The seized goods were deposited to the Divisional Customs godown, Dhubri, on 10.3.2009. A Customs case was booked against M/s. ART International, Barasat, Kolkata, vide case No. 13/IMP/CUS/Hqrs. PREV/SH/08-09 dated 9.3.2009 valued at Rs. 66,77,650/- (Rupees sixty-six lakhs seventy-seven thousand six hundred fifty) only. The investigation of the case is still on. (Inventory of goods seized dated 9.3.2009 is enclosed and marked as Annexure-III). (viii) A Panchanama dated 9.3.2009 was drawn from the two seizure witnesses. A voluntary statement dated 9.3.2009 was also subscribed by Md. Hussain, the immediate possessor of the goods where in the presence of independent witnesses he stated inter alia that on being requested by Shri Shadhan Dey of Kolkata and local Customs Officers, a consignment of ready-made garments imported from Bangladesh was stored in his godwon by them and they left from the spot after sealing the godown. He was informed that the said goods belonged to Shri Shadhan Dey who is the actual owner of the goods (statement dated 9.3.2009 of Mohammad Hussain subscribed in Bengali and its free English translation is enclosed and marked as Annexure - IV). 6. He was informed that the said goods belonged to Shri Shadhan Dey who is the actual owner of the goods (statement dated 9.3.2009 of Mohammad Hussain subscribed in Bengali and its free English translation is enclosed and marked as Annexure - IV). 6. From a careful reading of what the respondents have averred in their affidavit, what becomes clear is that according to the respondents, having come to know that a grossly mis-declared consignment of ready-made garments, imported by the petitioner from Bangladesh, had entered into India through Mankachar Land Customs Station and was kept stored in a godown of one Mohammad Hussain, the customs officials telephoned the Superintendent, Mankachar Land Customs Station, and, upon query made by them, the Superintendent, Mankachar Land Customs Station, informed the customs officials that a consignment of ready-made garments had, indeed, entered into India, but necessary clearance could not be given due to darkness, whereupon a direction was given by the customs officials to the Superintendent, Mankachar Land Customs Station, not to give clearance to the imported consignment until the time customs officials from the Headquarters, at Shillong, reached Mankachar. The respondents also contend that when a team of customs officials reached Mankachar on 5.3.2009, the officials were informed by the said Superintendent that the imported consignment had been kept stored in the private godown of one Mohammad Hussain and, thereafter, a physical verification of the said consignment was conducted by the customs officials and the consignment was found to contain as many as 28,932 pieces of ready-made garments, in place of 16,900 pieces, as mentioned in the covering documents, issued by the exporter, M/s. Friends International, Dhaka , to the importer (i.e., the petitioner herein), namely, M/s. ART International, Barasat, Kolkata. 7. Assuming that what the respondents have submitted are all true, what transpires from there is that instead of containing 16,900 pieces (112 Bales), the consignment was found containing as many as 28,932 pieces of ready-made garments, though these pieces of ready-made garments were shown covered by the documents, which had been issued by M/s. Friends International, Dhaka, Bangladesh, to the present petitioner, as importer of the said garments. 8. 8. What is, however, crucial to bear in mind is that, admittedly, the consignment, in question, had not been handed over to the present petitioner, rather, the petitioner had not taken delivery of the said consignment inasmuch as the petitioner's representative had sought for joint inspection of the said consignment before the delivery was given to him. Otherwise also, the said consignment could not have been delivered to the consignee or the consignee's representative without the Bill of Entry having been duly filled up and signed by the consignee's representative. In this regard, one cannot avoid mentioning that the petitioner's representative had, admittedly, not signed the Bill of Entry. Hence, the question of handing over the consignment to the petitioner or its representative could not have arisen at all. This apart, the question of Bangladesh customs directly handing over the said consignment to the petitioner's representative too did not arise at all. Even the statement, given by Mohammad Hussain, on 9.3.2009, which the respondents rely upon, clearly indicate that it was not the petitioner's representative, who had requested said Mohammad Hussain to keep the consignment in his godown. Far from this, it was at the joint request of local customs officials and the petitioner's representative, Sadhan Dey, that the said consignment had been kept by the said Mohammad Hussain in his godown. In short, thus, it is impossible to even interfere, far less confidently hold, that the said consignment was ever received by, and/or handed over, to the petitioner or its representative. 9. In the backdrop of the above facts, when I turn to the petitioner's case, I notice that according to the petitioner, the petitioner's representative submitted, on 4.3.2009, a provisional Bill of Entry and requested for a joint inspection to be conducted so that the consignment can be taken delivery of by the present petitioner's said representative. The fact that the petitioner's representative had made such a representation is not in dispute inasmuch as the said representation was, admittedly, handed over by the Superintendent, Mankachar Land Customs Station, to the customs officials in the morning of 5.3.2009. What is also crucial to note is that even the respondents submit that though the petitioner had filled up the Bill of Entry, but it had not signed the same. Thus, the Bill of Entry was incomplete and no declaration can be said to have been made thereunder. What is also crucial to note is that even the respondents submit that though the petitioner had filled up the Bill of Entry, but it had not signed the same. Thus, the Bill of Entry was incomplete and no declaration can be said to have been made thereunder. When the declaration is not complete and not enforceable, the question of misdeclaration does not arise. Hence, the respondent's contention that there was misdeclaration is ex facie misconstrued and unfounded in law. 10. Moreover, what transpires from the above is that the petitioner had not formally completed the entry in the Bill of Entry, had not signed the same and had not taken the delivery of the consignment. In such circumstances, even if the said consignment contained other than, or more than, what the said consignment, according to the covering letter, dated 27.3.2009, aforementioned (issued by the exporter) indicated to have contained, the fact remains that the petitioner's representative had not handed over a complete Bill of Entry to the customs officers and had not taken delivery of the said consignment; rather, what the petitioner's representative did was to claim for a joint inspection of the consignment. In the absence of any other motive, either attributed by the respondents to the present petitioner, or is attributable to the petitioner in the facts and attending circumstances of the present case, what becomes clear is that the petitioner's contract with the said exporter for import was for 1,50,000 pieces of ready-made garments and, out of said 1,50,000 pieces, the petitioner had received 2108 pieces, on 28.2.2009, from the said exporter under the covering letter, dated 9.2.2009, aforementioned. Hence, the petitioner's consignment, in the light of the covering letter, dated 27.2.2009, ought to have contained 16,900 pieces of ready-made garments; whereas the consignment was found to contain 28,932 pieces. In this regard, there is already a letter, on record, which has been issued from the office of the High Commission of India, Dhaka, communicating to the customs officials that the said exporter, namely, M/s. Friends International, Dhaka, had sought for intervention of the High Commission of India to get back their said consignment, which, according to the said exporter, had been mistakenly sent by them to the present petitioner against invoice, dated 27.2.2009. In the said letter, dated 26.3.2009, the Joint Commissioner of Customs, at Shillong, has been requested to redirect the consignment to the exporter. 11. Thus, what the petitioner's case, final, emerges is that the said exporter had given the petitioner an invoice, dated 27.2.2009, for 16,900 pieces of ready-made garments, and the consignment, having been arrived on 4.3.2009, the petitioner's representative did not complete the Bill of Entry, nor did the petitioner's representative obtain delivery of the consignment. Instead thereof, the petitioner's representative merely filled up the Bill of Entry, indicating therein the number of pieces, which the invoice, dated 27.2.2009, had mentioned, and, then, without signing the said Bill of Entry, sought to have a joint inspection of the said consignment so that it could be ascertained as to what the said consignment actually contained and/or what the state of the said consignment actually was. 12. The petitioner contends that the Indian Customs officials informed the authorized representative of the petitioner that the total number of packages, mentioned in the packing list and invoice, dated 27.2.2009, was 112; whereas they received only 108 packages/bales and, on receiving the information, the petitioner's representative, immediately, requested the Superintendent, Mankachar Land Customs Station, to allow a joint inspection of the consignment, but this was not done. The petitioner further contends that it is gathered from the communication, received from the said exporter, namely, M/s. Friends International, that the consignment, which had reached India in the name of the petitioner, had been wrongly sent, and the said exporter requested the petitioner to export the goods back to the said exporter and, in this regard, though the petitioner made a representation to the Joint Commissioner of Customs (Preventive), Shillong, by its letter, dated 17.3.2009, the same was not allowed. The petitioner further points out that it had placed order for Pyjama (M/B), Pyjama Small (M/B), short Pant (Women & Girls) of 6545 pieces, 4492 pieces and 5863 pieces respectively, whereas the consignment, which the said exporter had sent, does not match, either in quantity, or in quality, the ordered goods and, hence, the petitioner has agreed to send back the consignment so as to receive the goods, which the petitioner had placed orders for. Even the Attache (Eco. Even the Attache (Eco. & Comm.) of the High Commission of India, Bhaka, had requested the petitioner to receive the consignment, which had wrongly been sent to the petitioner, at the earliest, and export the same back to the exporter. The petitioner contends that the exporter too had made similar request to the Commissioner off Customs (Preventive) for allowing export of the said consignment back to the exporter, but no action has been taken and, on being apprised of the whole situation, the Attache (Eco. & Comm.), by its letter, dated 26.3.2009, requested the Joint Commissioner of Customs (Preventive), Shillong, to allow the petitioner tore-export the wrongly sent goods so that the correct consignment could be sent by the said exporter to the petitioner; but, once again, and as before, the respondents have done nothing. In the face of the admission, made by the exporter, and supported by the office of the High Commission of India, the action of the respondents, according to the petitioner, is ex facie arbitrary and without jurisdiction. The impugned action of the respondents, thus, submits the petitioner, reflects malice in law as well as in facts. 13. As against the case, so placed by the petitioner, the respondents contend thus : The investigation, so far made, has revealed that the petitioner's said authorized representative was present at 'Zero point' at the time, when the said consignment was handed over by Bangladesh Customs to. Indian Customs. No objection, or refusal, was made by the petitioner's representative to accept the consignment, when the Inspector of Customs, Bangladesh, delivered the said consignment to the Inspector of Customs of Mankachar Land Customs Station. Thus, according to the respondents, the petitioner's representative had accepted the imported consignment, on 4.3.2009, in presence of the officers of the different enforcement agencies of the Government of India. This contention of the respondent is wholly unfounded and untenable in law. One wonders how can the petitioner or the petitioner's representative be said to have accepted the consignment, when neither a valid Bill of Entry was handed to the custom officials by the petitioner's representative nor was the consignment delivered to the petitioner's representative. 14. This contention of the respondent is wholly unfounded and untenable in law. One wonders how can the petitioner or the petitioner's representative be said to have accepted the consignment, when neither a valid Bill of Entry was handed to the custom officials by the petitioner's representative nor was the consignment delivered to the petitioner's representative. 14. The respondents further contend that the petitioner had attempted to illegally import a huge quantity of excess goods with the fraudulent intention of avoiding payment of the requisite import duty and thereby defraud the Government exchequer and on such attempt being exposed, the petitioner has even maneuvered the exporter to write to the authority that a wrong consignment had been dispatched to the petitioner. The respondents, therefore, contend that the seizure has been validly made and that the goods are liable for confiscation under Section 111(d) and 111(m)of the Customs Act, 1962. 15. What emerges from the above discussion is that except for the fact that the consignment, in question, had been sent in the name of the petitioner and that the consignment does not contain the materials, which the invoice, dated 27.2.2009, issued by the exporter, had mentioned, there is no material on record to show that the petitioner had attempted to import the said consignment by avoiding payment of import duty on the consignment. The consignment was, admittedly, handed over by the Bangladesh Customs to Indian Customs. When the petitioner's representative had not been given delivery of the consignment, the question of the petitioner's representative having accepted the consignment does not arise at all. Without giving delivery of the consignment to the petitioner's representative, the customs officials kept the consignment in the custody of one Muhammad Hussain. Thus, the seizure, in question, in the facts and attending circumstances of the present case, was, admittedly, made, while Muhammad Hussain was holding the said consignment as a custodian of the respondents. 16. Coupled with the above, one cannot but take note of the fact that the petitioner's representative had, admittedly, asked for a joint inspection of the said consignment. Thus, the seizure, in question, in the facts and attending circumstances of the present case, was, admittedly, made, while Muhammad Hussain was holding the said consignment as a custodian of the respondents. 16. Coupled with the above, one cannot but take note of the fact that the petitioner's representative had, admittedly, asked for a joint inspection of the said consignment. No reason was given by the respondents as to why the request for joint inspection was not acceded to, or as to why the petitioner's representative had made the request for joint inspection, if the petitioner intended to import the said consignment fraudulently, for, a joint inspection would have revealed to the customs officials that the materials received were not in tune with the materials mentioned in the invoice, dated 27.2.2009, aforementioned. 17. In the absence of a complete Bill of Entry having been signed and submitted by the petitioner, or its representative, to the customs authorities, there can be no escape from the conclusion that no declaration, in terms of the provisions of the Customs Act, 1962, had been made by the petitioner or its representative as to what the said consignment contained. Obviously, unless any other material is brought on record to sufficiently strengthen the contention of the respondents, one cannot but hold that the petitioner did not try to receive materials other than what the petitioner had placed orders for, nor did the petitioner try to import from Bangladesh to India the seized goods as the cognizance except that the said consignment was in the name of the petitioner. When the exporter from Bangladesh insists that the said consignment was wrongly sent, no case, in the absence of any other material placed on record, against the petitioner or the said Bangladeshi exporter, can be said to have been made out. Since the consignment is in the name of the petitioner, it logically follows that none other than the petitioner can receive the consignment or take delivery of. Since the consignment is in the name of the petitioner, it logically follows that none other than the petitioner can receive the consignment or take delivery of. But when the petitioner is not shown to have placed order for the seized goods, when the petitioner had not handed over a complete and enforceable Bill of Entry and when the petitioner sought for joint inspection of the consignment so as to know as to what the consignment contained, the petitioner cannot be either forced to receive the consignment or can be said to have made a misdeclaration and/or attempted to import the said material without paying due export duty. In the absence of anything showing to the contrary, there is, thus, no material on record, which can justify the seizure of the materials of the said consignment, and the petitioner cannot be made liable therefor. The respondents' case is based, it is apparent, on surmises, conjecture or suspicion, however attractive may be such surmises, conjecture or suspicion; to the person, who may indulge in such surmises, conjecture, or suspicion, such surmises or suspicion cannot become a foundation for, or lay the basis of, a valid seizure. 18. I may pause, at this stage, to point out that it is Section 46 of the Customs Act, 1962, which relates to bill of entry. Sub-section (1) of Section 46 lays down that the importer of any goods, other than goods intended for transmit or transhipment, shall make entry thereof by presenting to the proper officer a bill of entry for home consumption or warehousing in the prescribed form. The proviso to Sub-section (1) of Section 46, however, provides that if the importer makes and subscribes to a declaration before the proper officer to the effect that he is unable, for want of full information, to furnish all the particulars of the goods, the proper officer may, pending the production of such information, permit him, previous to the entry thereof, (a) to examine the goods in the presence of an officer of customs, or (b) to deposit the goods in a public warehouse appointed under Section 57 without warehousing the same. Thus, the proviso allows the importer to inspect or examine the goods, in the presence of an officer of customs, before a complete bill of entry is handed over to the customs officer. Thus, the proviso allows the importer to inspect or examine the goods, in the presence of an officer of customs, before a complete bill of entry is handed over to the customs officer. Considering the fact that even before the said consignment was handed over to the petitioner's representative, the said consignment was, on being inspected by the customs officials, found to contain materials not wholly consistent with the invoice, the petitioner was wholly justified in seeking to have a joint inspection so as to ascertain as to what the said consignment actually contained. Sub-section (4) of Section 46 makes it clear that the importer, while presenting a bill of entry, shall, at the foot thereof, make and subscribe to a declaration as to the truth of the contents of such bill of entry and shall, in support of such declaration, produce to the proper officer the invoice, if any, relating to the imported goods. Thus, the contents of Sub-section (4) of Section 46 make it more than abundantly clear that unless the importer makes and subscribes a declaration as to the truth of the contents of the bill of entry, the consignment cannot be handed over to the importer or his representative. In the case at hand, the bill of entry was, admittedly, not made and subscribed as is warranted by the provisions of Sub-section (4) of Section 46. Hence, the question of misdeclaration did not arise at all. 19. I may also point out that while Section 46 relates to import of goods for home consumption or warehousing, Section 77 relates to declaration by owner of any baggage, who enters into an area as a passenger from a foreign country. Section 77 does not deal with declaration, which is not made by a passenger but by an importer of goods. Section 77 is, therefore, not attracted to the facts of the present case. 20. Bearing in mind as to what Section 46 vis-a-vis Section 77 deal with, let me, now, turn to Section 110. This section, in no uncertain words, lays down that if the proper officer has reason to believe that any goods are liable to confiscation under the Customs Act, 1962, he may seize such goods. Thus, the condition precedent for making a valid seizure is reason to believe that goods are liable to confiscation. This section, in no uncertain words, lays down that if the proper officer has reason to believe that any goods are liable to confiscation under the Customs Act, 1962, he may seize such goods. Thus, the condition precedent for making a valid seizure is reason to believe that goods are liable to confiscation. Consequently, when the imported goods are not liable to confiscation, question of seizure thereof does not arise. 21. Coupled with the above, it is Section 111, which makes provisions for confiscation of improperly imported goods. As the respondents contend that the consignment, in question, is liable to be confiscated by virtue of the provisions of clauses (d) and (m) of Section 111, clauses (d) and (m), apart from Clause (1) of Section 111, are reproduced hereinbelow" 111. Confiscation of improperly imported goods, etc.-The following goods brought from a place outside India shall be liable to confiscation : (a) *** *** *** (b) *** *** *** (c) *** *** *** (d) 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 in force. (e) *** *** *** (f) *** *** *** (g) *** *** *** (h) *** *** *** (i) *** *** *** (j) *** *** *** (k) *** *** *** (l) any dutiable or prohibited goods, which are not included in, or are in excess of those included in, the entry made under this Act, or in the case of baggage in the declaration made under Section 77. (m) any goods which do not correspond in respect of value or in any other particular with the entry made under this Act or in the case of baggage with the declaration made under Section 77 in respect thereof or in the case of goods under transhipment with the declaration for transhipment referred to in the proviso to Sub-section (1) of Section 54. 22. In order to attract Clause (d) of Section 111, the goods, sought to be confiscated, must be goods, which are imported or attempted to be imported or are brought within the Indian customs waters, contrary to any prohibition imposed by or under the said Act or any other law for the time being in force contrary to any prohibition imposed. In order to attract Clause (d) of Section 111, the goods, sought to be confiscated, must be goods, which are imported or attempted to be imported or are brought within the Indian customs waters, contrary to any prohibition imposed by or under the said Act or any other law for the time being in force contrary to any prohibition imposed. The respondents have not been able to show as to how the goods, in question, can be said to have been imported and attempted to have been imported contrary to any prohibition imposed by the said Act or any other law for the time being in force. 23. Similarly, Clause (1) of Section 111 is attracted, when any dutiable goods, such as, the ones, which the consignment, in question , contain, are not included, or in excess of those included, in the bill of entry, or, in the case of baggage, in the declaration made under Section 77, in other words, unless a bill of entry is made in terms of Section 46 or a declaration is made in terms of Section 77, the question of applying Clause (1) of Section 111 does not arise at all. In the case at hand, since a completed Bill of Entry with the declaration, as mandated by Section 46(4) had not been submitted to the customs authorities, the provisions contained in Clause (1) of Section 111 could not have been applied. 24. Coming to Clause (m) of Section 111, it needs to be borne in mind that except when a bill of entry has been completed and signed in terms of the provisions of Section 46 or a declaration is made in terms of the provisions of Section 77. Clause (m) of Section 111 too does not come into play inasmuch as Clause (m) of Section 111 comes into play, when any goods, which do not correspond, in respect of value or in any other particular, with the Bill of Entry made under the said Act or, in the case of baggage, with the declaration of baggage made under Section 77 or, in the case of goods under transhipment, does not tally with the declaration for transhipment made. In the present case, as no completed Bill of entry with the signature of the petitioner or its representative had been submitted to the customs authority with the requisite declaration, Clause (m) of Section 111 could not have been invoked. 25. What emerges from the above discussion is that the respondents have failed and failed miserably to show that any of the provisions of Section 111 are attracted to the facts of the present case. Hence, no case of confiscation of the said consignment has been made out by the respondents. In such a situation, seizure was wholly illegal and cannot be sustained. 26. Coupled with above, one cannot avoid pointing out that in the present case, the petitioner is not shown to have either made a misdeclaration or attempted to import goods in contravention of law. In such circumstances, appropriate relief must be made available to the petitioner inasmuch as the petitioner cannot be made to suffer financial loss due to an act of exporter, which does not bind the petitioner inasmuch as the petitioner is not shown to have placed orders for the materials, which the consignment, in question, contains. The power, contained under Article 226 of the Constitution of India, must, therefore, be invoked for the purpose of shaping the relief, which the petitioner is entitled to. 27. The Supreme Court had the occasion, in Northern Plastic v. Collector of Central Excise reported in (1998) 6 SCC 443 , to explain as to what constitute misdeclaration or when can a declaration made can be said to be misdeclaration. In this regard, the Supreme Court has pointed out, in Northern Plastic (supra), at para 18, thus: 18. ...According to the said provision, the goods brought from a place outside India are liable to confiscation if the goods "do not correspond in respect of value or in any other particular with the entry made under this Act". Therefore, if the description of the imported goods given to the customs authorities does not correspond in respect of value or in any other particular including its description as mentioned in the entry made under the Act, then only can they be said to have been misdeclared and, therefore, liable to confiscation. The word "entry" in the context of the facts of this case meant an entry made in the Bill of Entry. The word "entry" in the context of the facts of this case meant an entry made in the Bill of Entry. Therefore, before holding that the goods were misdeclared, the authorities were required to come to the conclusion that the imported goods did not correspond in respect of value or in any other particular with the description and the value of the goods as stated in the Bill of Entry. In the Bill of Entry, the imported goods were described as cinematographic colour films (unexposed) positive. There was no dispute in respect of correct valuation of the goods or any other particular except its description as cinematographic colour films. Since the proceedings were initiated for the purpose of confiscation, the burden was on the department to show that the goods imported were not cinematographic colour films but were photographic colour films only. 28. From what have been pointed out above by the Supreme Court in Northern Plastic (supra), it becomes clear that before the customs officials hold that an importer has made a misdeclaration, the authorities concerned must come to the conclusion that the imported goods did not correspond, in respect of value or in any other particular, with the description and the value of the goods as stated in the bill of entry. In the present case, when the bill of entry itself has not been, admittedly, filled up in all respects, signed and subscribed by the petitioner or the petitioner's representative, the question of a declaration, which is incorrect, cannot be said to have arisen. And when an effective declaration has not been made at all, the question of misdeclaration does not arise. In no way, therefore, a case of confiscation of the goods, in question, has been made out by the respondents. When the respondents have failed to make out any case for confiscation of the goods, the question of upholding the seizure of the goods does not arise inasmuch as the goods can be seized in exercise of powers under Section 111 when a case for confiscation of the goods, or, at least, a prima facie case for confiscation of the goods, is made out. 29. Because of what have been discussed and pointed out above, the seizure of the goods, in question, cannot survive. 29. Because of what have been discussed and pointed out above, the seizure of the goods, in question, cannot survive. Situated thus, the impugned seizure, made on 4.3.2009, of the consignment, which forms the subject-matter of this writ petition, is hereby set aside and quashed and in consequence thereof, all further proceedings, already initiated or proposed to be initiated shall accordingly stand set aside and quashed. 30. With the above observations and directions, this writ petition shall stand disposed of. 31. No order as to costs.