Judgement

SARKAR, J. - By a notification dated March 16, 1953, the Government of India, gave general permission to all persons to import into India from certain countries any goods of any of the description specified in the schedule annexed to the notification. Among the goods specified in the Schedule were the following:

Iron and steel chains of all sorts assessable under Item 63 (28), Indian Customs Tariff, excluding chains for automobiles and cycles whether cut to length or in rolls.

2. The petitioner is an importer of goods. He states that relying on the notification mentioned above he placed an order with a company in Japan sometime in August, 1953, for the supply of certain goods called in the trade, Zip Chains. The goods arrived in the port of Calcutta in due course and the petitioner s bank paid the price of the goods amounting to Rs. 11,051-4-0.

Before the goods could be cleared from the port of Calcutta, the petitioner received a communication from the Assistant Collector of Customs for Appraisement, Calcutta, dated November 19, 1953, in which it was stated that it had been found that the petitioner did not possess valid import licence for the goods and requiring him to show cause why the goods should not be confiscated and action taken against the petitioner under S.167 Item 8 of the Sea Customs Act.

The communication also enquired if the petitioner wanted to be heard in person. The petitioner submitted in answer a written explanation stating that the Zip Chains imported by him were chains of the Kind free import of which had been permitted by the notification of March 16,1953, and therefore no licence to import them was necessary. He was thereafter again asked by the Customs-authorities whether he wanted a personal hearing to which he replied that he did not.

Thereafter on December 25, 1953, the Collector of Customs made an order confiscating the goods and imposing a penalty of Rs. 1000/- on the petitioner. This order bore an endorsement that it had been despatched to the petitioner on February 1, 1954. It reached him on February 3, 1954. The order stated that an appeal would lie against it to the Central Board of Revenue, New Delhi within three months from the date of its despatch as noted on it.

The petitioner preferred an appeal and posted the memorandum of appeal on May 4, 1954. The memorandum reached the Central Board of Revenue on May 6, 1954 and was dismissed on the ground that it had been preferred after the expiry of the time limited for the purpose. The Petitioner then made an application to the Government of India for revision of the order of the Central Board of Revenue but this application was rejected.

The petitioner thereafter applied to the High Court of Punjab under Art.226 of the Constitution for an appropriate writ to quash the order confiscating his goods and imposing the fine on him but this application too was dismissed.

3. The petitioner has now applied to this Court under Art.32 of the Constitution challenging the validity of the order made against him. Learned counsel for the petitioner did not challenge the decision of the Customs authorities that the goods were not covered by the notification of March 16, 1953. He conceded that he could not do so in this application. Nor did he challenge the Customs-authorities power to confiscate the goods.

Learned counsel however challenged the order of confiscation because it did not give the petitioner an option to pay a fine in lieu of confiscation. This contention was based on S.183 of the Sea Customs Act which provides as follows:

Whenever confiscation is authorised by this Act, the officer adjudging it shall give the owner of the goods an option to pay in lieu of confiscation such fine as the officer thinks fit.

4. This section undoubtedly requires an option to pay a fine in lieu of confiscation, to be given and this was not done. A difficulty however is used in the way of this argument by S.3 of the Imports and Exports (Control) Act, 1947. The relevant port