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2018 DIGILAW 199 (GUJ)

BHARGAVRAJ RAMESHKUMAR MEHTA v. UNION OF INDIA

2018-01-22

A.Y.KOGJE, AKIL KURESHI

body2018
JUDGMENT : AKIL KURESHI, J. 1. The petitioner has challenged an order-in-original dated 30.3.2016 passed by the Principal Commissioner of Customs, Mundra, in the following factual background. 2. The petitioner is an individual. He is stated to be a Dubai based Non Resident Indian. He is also a partner of a partnership firm M/s. Rajkot Impex having its establishment at Rajkot. It appears that the DRI authorities of the Customs department had intercepted a cargo purportedly carrying zinc ingots so declared by the importer which arrived at Mundra port. It was found that there was a systematic attempt to smuggle gold concealed in such ingots. The gold was carefully packed, insulated for protection and then covered with zinc to make it look like zinc ingots. The ones carrying concealed gold had distinguishing mark to enable their separation from the rest of the cargo. A full-fledged investigation was carried out. Statements of the importers and their agents were recorded under section 108 of the Customs Act, 1962. According to the Customs authorities, the petitioner was the kingpin of this smuggling attempt. He was the one who had roped in the actual importer and the middleman. A show cause notice dated 11.10.2014 was therefore, issued against all such persons including the petitioner for smuggling of gold weighing 24.980 kgs. The show cause notice also covered an earlier instance where allegedly the partnership firm of the petitioner was instrumental in smuggling of 4 kgs of gold. In this show cause notice, the petitioner was called upon to explain why penalties should not be imposed on him under sections 112 and 114AA of the Customs Act, 1962. Case of the petitioner is that such show cause notice was never served on him. The department though fully aware that the petitioner is a resident of Sharjah, sent the notices at the address of partnership firm at Rajkot and, thereafter, proceeded exparte against the petitioner without service of notice on him. Noticees other than the petitioner and his partnership firm appeared before the Commissioner who upon completion of the proceedings passed the impugned order. In addition to confirming duty demands against the rest of the noticees with interest and penalties, insofar as the petitioner is concerned, he imposed following penalties under sections 112 and 114AA of the Customs Act. “(h) I also impose Penalty of Rs.2,00,00,000/- (Rs. In addition to confirming duty demands against the rest of the noticees with interest and penalties, insofar as the petitioner is concerned, he imposed following penalties under sections 112 and 114AA of the Customs Act. “(h) I also impose Penalty of Rs.2,00,00,000/- (Rs. Two Crores only ) on Shri Bhargav Mehta, partner of M/s. Rajkot Impex, under Section 112(a) the Customs Act, 1962 for the acts and omission on their parts, as discussed above (i) I also impose Penalty of Rs. 10,00,000/- (Rs. Ten Lakhs only) on Shri Bhargav Mehta, partner of M/s. Rajkot Impex, under Section 114AA the Customs Act, 1962 for the acts and omission on their parts, as discussed above.” 3. We are informed that the order of the Commissioner confirming the demand of customs duty with interest and penalties against the partnership firm has been challenged before the CESTAT. Present petitioner however, has filed the writ petition directly bypassing the appellate remedy on the ground that the order of the Commissioner suffers from breach of principles of natural justice and even otherwise, he has passed the order beyond his jurisdiction. 4. Undoubtedly, against the impugned order passed by the Principal Commissioner, statutory appeal lies before CESTAT. The petitioner desires to press this petition directly without taking such appellate route. At the outset, therefore, we had clarified to the counsel for the petitioner that we would be entertaining only such issues which do not depend on the disputed questions of facts. In other words, we could examine the petitioner's grievances and legal contentions as long as facts on record are not disputed. The Customs Act provides for statutory appeals, the Tribunal being the final fact finding authority. If the petitioner therefore, desires to bypass such appellate remedy, he would have to forgo any challenge to the factual conclusions emerging from the order-in-original. Counsel for the petitioner readily agreed to this suggestion and agreed to confine his arguments on three fundamental issues which would go to the root of the matter without transgressing the factual conclusions of the Commissioner. His three principal contentions were the following : (i) That the petitioner had even as per the show cause notice and final conclusions of the adjudicating authority, masterminded the entire attempt of smuggling through his establishment at Sharjah. His three principal contentions were the following : (i) That the petitioner had even as per the show cause notice and final conclusions of the adjudicating authority, masterminded the entire attempt of smuggling through his establishment at Sharjah. If the petitioner therefore, had never visited India during any such process of conspiring to smuggle gold with other noticees, the jurisdiction of the Commissioner would not permit him to call upon the petitioner to answer the charges. After initially arguing this point for sometime, counsel for the petitioner dropped the same possibly when faced with the allegations in the show cause notice which ultimately came to be confirmed by the Commissioner that it was during one of his trips from Sharjah to India that the petitioner had hatched the conspiracy with the importer and the agent for smuggling gold for lucrative returns. This issue therefore, must rest here. (ii) The second contention of the counsel for the petitioner was that the show cause notice and notice for personal hearing were never served on the petitioner. He contended that the petitioner was being called upon in his personal capacity to answer the charges levelled in the show cause notice. The department was well aware that the petitioner has permanent establishment at Sharjah, despite which, the notices were dispatched at the address of partnership firm at Rajkot. This would not be sufficient compliance of the requirement of service of notice. The petitioner therefore, could not participate in the proceedings. The entire proceedings therefore, proceeded exparte. The order is therefore, vitiated for want of proper hearing. (iii) The last contention of the counsel for the petitioner was that the import of gold in any case was not prohibited. It was not even restricted as per the import policy prevailing at the relevant time. Gold was freely importable. Merely because an attempt to smuggle the gold even if so assumed was made, the import of gold perse would not become prohibited. He therefore, contended that in terms of clause (ii) of section 112, maximum penalty that can be imposed in such a case was 10% of the duty sought to be evaded. In the present case, the Commissioner imposed penalty of Rs. 2 crores under section 112 of the Act when the total value of gold even as per the department did not exceed Rs. 7.5 crores. In the present case, the Commissioner imposed penalty of Rs. 2 crores under section 112 of the Act when the total value of gold even as per the department did not exceed Rs. 7.5 crores. In support of his contention, counsel relied on judgment of Learned Single Judge of Calcutta High Court in case of Gopal Saha v. Union of India reported in 2016 (336) E.L.T. 230 (Cal.). 5. On the other hand, learned counsel for the department opposed the petition contending that the department had dispatched the notices at Rajkot address of the petitioner. Copies of such notices were also exhibited at the office of the Commissioner. Similar notices for personal hearing were also dispatched and exhibited. Therefore, there is sufficient service of notice. Counsel further submitted that the petitioner and his other coconspirators attempted to smuggle the gold by concealment in zinc ingots. There was thus fundamental breach of the condition on which the gold was importable. In terms of section 2(33) of the Customs Act, therefore, the goods were prohibited. Clause (i) of section 112 of the Customs Act would therefore, enable the Commissioner to impose penalty upto the value of goods. Counsel relied on judgment of Division Bench of Madras High Court in case of Malabar Diamond Gallery Ltd. v. Addl. Dir. General, Directorate of Revenue Intelligence, Chennai reported in 2016 (341) E.L.T. 65 (Mad.) and the decisions cited therein. 6. As noted, we are called upon to decide only two issues namely, of the service of the show cause notice and the notices of personal hearing on the petitioner and the limitation of imposing penalty under section 112 of the Act, if any. In context of the service of notice, respondent no.2 Assistant Commissioner of Customs, in his affidavit in reply dated 12.1.2018 clarified the position as under : “4. It is submitted that Two Summon were issued to Shri Bhargav Mehta, partner of Shri Rajkot lmpex and were sent through post at his office address, situated at 4th Floor, SamrudhiBhavan, Gondal Rajkot which was received as undelivered with postal remarks ‘Door locked”. Also two summonses were issued at his residential address at ‘Mahi’ 29, Basera Park, Near R.K. Nagar, Opposite Crystal Mall, Off Kalavad Road, Rajkot which were also returned back with postal remarks as “locked”. Also two summonses were issued at his residential address at ‘Mahi’ 29, Basera Park, Near R.K. Nagar, Opposite Crystal Mall, Off Kalavad Road, Rajkot which were also returned back with postal remarks as “locked”. Further summon was issued to Shri Bhargav Mehta at his present business address of M/s. Save Green General Trading Co. LLC, Sharjah which was not received back. The personal hearing of the case was held on 13.01.2016, 02.03.2016, 28.03.2016 and 30.03.2016. Letter dated 28.12.2015 intimating the date of PH as 13.01.2016, meant for Noticee M/s Rajkot Impex, SamrudhiBhavan, Gondal Road, Rajkot and Shri Bhargav Mehta, Partner of M/s Rajkot lmpex, or SamrudhiBhavan, Gondal Road, Rajkot was returned by the postal authorities undelivered. Letters dated 08.02.2016 and 09.03.2016 intimating the date of PH as 02.03.2016 and 28.03.2016/30.03.2016 were also displayed on the notice Board of the Custom House Mundra. The letters dated 08.02.2016 and 09.03.2016 meant for Noticee M/s Rajkot Impex, SamrudhiBhavan, Gondal Road, Rajkot and ShriBhargav Mehta, Partner of M/s Rajkot lmpex, SamrudhiBhavan, Gondal Road, Rajkot was returned by the postal authorities undelivered. Further, no reply to the Show Cause Notice has been submitted either by M/s Bhargav Mehta, partner of M/s Rajkot lmpex or by M/s Rajkot lmpex in spite of giving so much opportunity. Thus, ample of opportunities have been offered to the appellant to participate in the adjudicating process, however, he has appeared to be ignored the adjudication process intentionally and the department has followed the natural justice during the adjudication process at each stage correctly.” 7. Supporting documents are also on record. It would thus emerge that two summonses were issued to the petitioner, partner of M/s. Rajkot Impex, which was sent through post at the office address of 4th Floor, Samrudhi Bhavan, Gondal, Rajkot, which returned undelivered with postal remarks “Door locked”. Two more summonses were issued at the residential address of Mahi, 29, Basera Park, Near R.K.Nagar, Opp. Crystal Mall, Off Kalavad Road, Rajkot, which also returned with similar remarks. Summons was also issued to the petitioner at his Sharjah address which was not received back. Notices for personal hearing issued at the Rajkot address also returned undelivered. Such notices were displayed on the notice board of Customs House, Mundra. It would therefore emerge that sincere attempt was made by the Customs Authority for dispatch and serve notices and summonses. Summons was also issued to the petitioner at his Sharjah address which was not received back. Notices for personal hearing issued at the Rajkot address also returned undelivered. Such notices were displayed on the notice board of Customs House, Mundra. It would therefore emerge that sincere attempt was made by the Customs Authority for dispatch and serve notices and summonses. Such dispatches were made at the address of office of partnership firm as well as residence at Rajkot and later at the petitioner's address at Sharjah. Notices and summonses issued at Rajkot addresses returned undelivered with remarks premises locked. Summons dispatched at Sharjah did not return at all. Moreover, the department also exhibited such summonses and notices at Mundra Customs House. The petitioner cannot take a stand that the notices and summonses were not duly served. All the attempts of actual service having failed, the department had no choice but to exhibit such notices and summonses at the Customs House. Significantly, such notices and summonses were dispatched at the Rajkot address of the partnership firm, of which the petitioner was the partner. The petitioner may have been called upon in his personal capacity to answer the charges, nevertheless, he cannot disown the establishment of the partnership firm, of which he was an active partner and claim that any summons or notice dispatched at the address of the partnership firm would not amount to service on him. This would be way too technical. Even otherwise the department had sent one summons to his address at Sharjah and finally relied on exhibition of such notices and summonses at the Customs House. The question of breach of principles of natural justice therefore does not arise. 8. More complex and interesting question however is, whether the power of the Commissioner to impose penalty under section 112 of the Customs Act was hedged with limitation of maximum of 10% of the duty attempted to be evaded or 100% of the value of goods? In this context, we may refer to relevant provisions contained in the Customs Act. Chapter XIV of the Customs Act pertains to confiscation of goods and conveyances and imposition of penalties. Section 111 contained in the said chapter pertains to confiscation of improperly imported goods etc. In this context, we may refer to relevant provisions contained in the Customs Act. Chapter XIV of the Customs Act pertains to confiscation of goods and conveyances and imposition of penalties. Section 111 contained in the said chapter pertains to confiscation of improperly imported goods etc. The said section provides that goods brought from a place outside India in case of any of the eventualities mentioned in clauses (a) to (p) thereof shall be liable to confiscation. Clause (d) thereof provides as under : “(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 order under this Act or any other law for the time being in force;” 9. Likewise, clause (e) of section 111 reads as under: “(e) any dutiable or prohibited goods found concealed in any manner in any conveyance.” 10. Section 112 of the Act pertains to penalty for improper importation of goods etc., relevant portion of which reads as under: “112. Penalty for improper importation of goods, etc. —Any person,— (a) who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 111, or abets the doing or omission of such an act, or (b) who acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing, or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111, shall be liable,— (i) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty [not exceeding the value of the goods or five thousand rupees], whichever is the greater; (ii) in the case of dutiable goods, other than prohibited goods, subject to the provisions of section 114A, to a penalty not exceeding ten per cent of the duty sought to be evaded or five thousand rupees, whichever is higher;” 11. We would refer to this section at length later. We would refer to this section at length later. For the time being, we may notice that if any of the eventualities envisaged in clauses (a) or (b) of section 112 arise as per clause(i), the person concerned would be liable to penalty not exceeding the value of the goods or five thousand rupees whichever is greater, in case of goods in respect of which any prohibition is in force under the Act or any other law for the time being in force. However, if such goods are dutiable goods other than prohibited goods as per clause(ii), such penalty would not exceed 10% of the duty sought to be evaded or five thousand rupees whichever is greater. 12. In this context, the terms 'prohibited goods', and “dutiable goods” become important. Term 'prohibited goods' is defined under section 2(33) of the Act as under: “(33) “prohibited goods” means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported, have been complied with.” 13. Term 'dutiable goods' is defined under section 2(14) of the Act as under: “(14) dutiable goods” means any goods which are chargeable to duty and on which duty has not been paid.” 14. We may also refer to the term 'smuggling' 2(39) of the Act which reads as under: “(39) “smuggling, in relation to any goods, means any act or omission which will render such goods liable to confiscation under section 111 or section 113.” 15. We may recall, the contention of the counsel for the petitioner in this respect was that the gold at the relevant time was freely importable. Import of gold was not prohibited. Case of the petitioner would therefore, fall under second clause of section 112 and penalty not exceeding 10% of the duty sought to be evaded would be the maximum penalty imposable. Such contention shall have to be examined in light of the statutory provisions noted above. As noted, section 111 of the Act provides for various eventualities in which the goods brought from a place outside India would be liable for confiscation. Such contention shall have to be examined in light of the statutory provisions noted above. As noted, section 111 of the Act provides for various eventualities in which the goods brought from a place outside India would be liable for confiscation. As per clause (d) of section 111, goods which are imported or attempted to be imported or are brought within the Customs quarters for import contrary to any prohibition imposed by or under the Act or any other law for the time being in force, would be liable for confiscation. Similarly, for dutiable or prohibited goods found concealed in any manner in any conveyance would also be liable to confiscation. As per section 2(39) the term 'smuggling' would mean in relation to any goods, any act or omission which will render such goods liable to confiscation under section 111 or section 113. Thus, clearly section 111 of the Customs Act prohibits any attempt at concealment of goods and bringing the same within the territory of India without declaration and payment of prescribed duty. Term 'prohibited goods' as defined under section 2(33) means any goods, the import or export of which is subject to any prohibition under the Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with. This definition therefore, comes in two parts. The first part of the definition explains the term 'prohibited goods' as to mean those goods, import or export of which is subject to any prohibition under the law. The second part is exclusionary in nature and excludes from the term 'prohibited goods', in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with. From the definition of term 'prohibited goods', in case of goods, import of which is permitted would be excluded subject to satisfaction of the condition that conditions for export have been complied with. By necessary implication therefore in case of goods, import of which is conditional, would fall within the definition of prohibited goods if such conditions are not complied with. 16. By necessary implication therefore in case of goods, import of which is conditional, would fall within the definition of prohibited goods if such conditions are not complied with. 16. Further clarity in this respect would be available when one refers to the term 'dutiable goods' as to mean any goods which are chargeable to duty and on which duty has not been paid. We refer to this definition since section 112 makes the distinction in respect of goods in respect of which any prohibition is imposed and dutiable goods other than prohibited goods. When clause (ii) of section 112 therefore, refers to dutiable goods other than prohibited goods, it shall necessarily have the reference to the goods, import of which is not prohibited or of which import is permissible subject to fulfillment of conditions and such conditions have been complied with. Condition of declaration of dutiable goods, their assessment and payment of customs duties and other charges is a fundamental and essential condition for import of dutiable goods within the country. Attempt to smuggle the goods would breach all these conditions. When clearly the goods are sought to be brought within the territory of India concealed in some other goods which may be carrying no duty or lesser duty, there is clear breach of conditions of import of goods though perse import of goods may not be prohibited. 17. In an elaborate judgment, Division Bench of Madras High Court in case of Malabar Diamond Gallery Ltd. (supra) has taken such a view. Interpretation of section 112 of the Customs Act in context of prohibition for import of goods came up for consideration before the Court. In the said case, the department had prior intelligence that the petitioner's consignment of gold jewellery to be smuggled into the country was to arrive from Singapore. On the basis of such information, the imported consignment of the petitioner was intercepted. The gold jewellery of foreign origin was seized. The authorised representative of the petitioner company also admitted that such jewellery was of Singapore origin and that the same was smuggled into India without the payment of customs duty. The petitioner approached the High Court of Madras seeking provisional release of such gold jewellery on suitable conditions. One of the issues which arose before the High Court was of applicability of section 112 of the Customs Act. The petitioner approached the High Court of Madras seeking provisional release of such gold jewellery on suitable conditions. One of the issues which arose before the High Court was of applicability of section 112 of the Customs Act. On behalf of the petitioner it was argued that the gold jewellery was not an item whose import was prohibited and that therefore, the goods were not liable to be confiscated and consequently, cannot be seized. For the petitioner in the context of definition of prohibited goods, it was contended that import of gold was not prohibited. The Court held that the expression “prohibition under this Act” used in section 2(33) of the Customs Act has to be examined bearing in mind other provisions of the said Act. The Court referring to several judgments of the Supreme Court including in case of Om Prakash Bhatia v. Commissioner of Customs, Delhi reported in 2003(6) SCC 161 and in case of Sheikh Mohd. Omer v. Collector of Customs, Calcutta and others reported in 1970 (2) Supreme Court Cases 728 held as under : “47. Smuggling in relation to any goods is forbidden and totally prohibited. Failure to check the goods on the arrival at the customs station and payment duty at the rate prescribed, would fall under the second limb of section 112(a) of the Act, which states omission to do any act, which act or omission, would render such goods liable for confiscation under Section 111 of the Act. Sub section (b) to Section 111 of the Act covers the persons involved. xxxx 54 If the contentions of the appellant have to be accepted, then all the goods seized and liable for confiscation have to be provisionally released, in terms of Section 110(1A) of the Customs Act, 1962, and in such circumstances, the very object of the Customs Act, 1962, would be defeated. Going through the notifications, we are of the view that the abovesaid notifications do not confer any absolute right to the appellant, to seek for provisional release of gold, alleged to have been smuggled. At this juncture, it is relevant to extract Paragraphs 41 and 42 in the show cause notice, dated 16.09.2013, issued by the Directorate of Revenue Intelligence, as to how, the gold came to be seized and liable for confiscation......” 18. At this juncture, it is relevant to extract Paragraphs 41 and 42 in the show cause notice, dated 16.09.2013, issued by the Directorate of Revenue Intelligence, as to how, the gold came to be seized and liable for confiscation......” 18. In the judgment of Kerala High Court in case of Abdul Razak v. Union of India reported in 2017(275) E.L.T. 300 (KER), facts were that the appellant before the High Court had landed in the country in a flight from MiddleEast without declaring any goods attracting the customs duty. After passing through the green channel at the airport, the Customs officers intercepted him. Upon examination, it was found that the appellant was carrying 8 kgs of gold by concealing it in emergency light, grinder etc. Smuggled gold was seized by the Customs department and subsequently confiscated after rejecting the appellant's request for release of the goods on payment of redemption fine. In this context, the definition of term 'prohibited goods' contained in section 2(33) of the Customs Act was required to be interpreted by the High Court. The High Court referring to the judgment in case of Om Prakash Bhatia (supra), held and observed as under : “6. After hearing both sides and after considering the statutory provisions, we do not think the appellant, as a matter of right, can claim release of the goods on payment of redemption fine and duty. Even though gold as such is not a prohibited item and can be imported, such import is subject to lot of restrictions including the necessity to declare the goods on arrival at the Customs Station and make payment of duty at the rate prescribed. There is no need for us in this case to consider the conditions on which import is permissible and whether the conditions are satisfied because the appellant attempted to smuggle out the goods by concealing the same in emergency light, mixie, grinder and car horns etc. and hence the goods so brought is prohibitory goods as there is clear violation of the statutory provisions for the normal import of gold. Further, as per the statement given by the appellant under Section 108 of the Act, he is only a carrier i.e. professional smuggler smuggling goods on behalf of others for consideration. and hence the goods so brought is prohibitory goods as there is clear violation of the statutory provisions for the normal import of gold. Further, as per the statement given by the appellant under Section 108 of the Act, he is only a carrier i.e. professional smuggler smuggling goods on behalf of others for consideration. We, therefore, do not find any merit in the appellant's case that he has the right to get the confiscated gold released on payment of redemption fine and duty under Section 125 of the Act.” 19. In case of Om Prakash Bhatia (supra), facts were that the appellant was engaged in export of garments. The appellant had received an order from the overseas buyer for supply of specific numbers of ladies' skirts at contract price. The appellant filed four shipping bills declaring the export of 28000 pieces of ladies' skirts at contract price, total value of which would come to Rs.1.21 crores (rounded off). On checking by the Customs authorities, it was found that the actual quantity of skirts was 21184 pieces and the market price of the garment was Rs.45 per piece which was much below the declared price and according to which the total value of the goods came to Rs.9.53 lacs (rounded off). The exporter had claimed drawback of Rs. 21.87 lacs on the consignment at the rate of Rs.78/per piece. The exporter contended that it was an unintentional mistake. During the hearing of the drawback proceedings, it was admitted by the exporter that market price of Rs.45/per piece was acceptable and on such basis the drawback claim was granted. The Commissioner of Customs was of the opinion that this was the second such case of the same exporter and there was an organized racket to claim fraudulent drawback by over-in-voicing the goods. He therefore, imposed redemption fines and personal penalties. In such background, the question of authority of the Customs department to confiscate the goods and the definition of term 'prohibited goods' contained in section 2(33) of the Act came up for consideration before the Supreme Court. It was observed as under : “10. He therefore, imposed redemption fines and personal penalties. In such background, the question of authority of the Customs department to confiscate the goods and the definition of term 'prohibited goods' contained in section 2(33) of the Act came up for consideration before the Supreme Court. It was observed as under : “10. From the aforesaid definition, it can be stated that (a) if there is any prohibition of import or export of goods under the Act or any other law for the time being in force, it would be considered to be prohibited goods; and (b) this would not include any such goods in respect of which the conditions, subject to which the goods are imported or exported, have been complied with. This would mean that if the conditions prescribed for import or export of goods are not complied with, it would be considered to be prohibited goods. This would also be clear from Section 11 which empowers the Central Government to prohibit either 'absolutely' or 'subject to such conditions' to be fulfilled before or after clearance, as may be specified in the notification, the import or export of the goods of any specified description. The notification can be issued for the purposes specified in subsection (2). Hence, prohibition of importation or exportation could be subject to certain prescribed conditions to be fulfilled before or after clearance of goods. If conditions are not fulfilled, it may amount to prohibited goods. This is also made clear by this Court in Sheikh Mohd. Omer v. Collector of Customs, Calcutta and Others [ (1970) 2 SCC 728 ] wherein it was contended that the expression 'prohibition' used in section 111 (d) must be considered as a total prohibition and that the expression does not bring within its fold the restrictions imposed by clause (3) of the Import Control Order, 1955. The Court negatived the said contention and held thus:— " … What clause (d) of Section 111 says is that any goods which are imported or attempted to be imported contrary to "any prohibition imposed by any law for the time being in force in this country" is liable to be confiscated. "Any prohibition" referred to in that section applies to every type of "prohibition". That prohibition may be complete or partial. Any restriction on import or export is to an extent a prohibition. "Any prohibition" referred to in that section applies to every type of "prohibition". That prohibition may be complete or partial. Any restriction on import or export is to an extent a prohibition. The expression "any prohibition" in section 111 (d) of the Customs Act, 1962 includes restrictions. Merely because Section 3 of the Imports and Exports (Control) Act, 1947, uses three different expressions "prohibiting", "restricting" or "otherwise controlling", we cannot cut down the amplitude of the word "any prohibition" in Section 111(d) of the Act. "Any prohibition" means every prohibition. In other words all types of prohibitions. Restriction is one type of prohibition. From item (I) of Schedule I, Part IV to Import Control Order, 1955, it is clear that import of living animals of all sorts is prohibited. But certain exceptions are provided for. But nonetheless the prohibition continues." xxxx 20. Hence, in cases where the export value is not correctly stated, but there is intentional over-in-voicing for some other purpose, that is to say, not mentioning true sale consideration of the goods, then it would amount to violation of the conditions for import/export of the goods. The purpose may be money laundering or some other purpose, but it would certainly amount to illegal/ unauthorised money transaction. In any case, over-in-voicing of the export goods would result in illegal/irregular transactions in foreign currency.” 20. We are conscious of the view taken by the learned Single Judge of Calcutta High Court in case of Gopal Saha(supra) and on which heavy reliance is placed by the counsel for the petitioner. Learned Single Judge has taken a view different from what we have expressed in this judgment. We have recorded our independent reasons and sided with the view expressed by Madras High Court in case of Malabar Diamond Gallery Ltd.(supra). 21. In the result, petition is dismissed.