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High Court Of Calcutta
M. N. Roy
HARCHAND - Appellant
Versus
ADDITIONAL COLLECTOR OF CUSTOMS - Respondent
C. R. 3433 (W) Of 1973
Decided On : 05/03/1979
CUSTOMS ACT - SECTIONS 29, 137, 167(3), 167(37), 160, 155 - REPEAL OF SEA CUSTOMS ACT, 1878 - EFFECT OF REPEAL - INITIATION OF PROCEEDINGS UNDER REPEALED ACT - MAINTAINABILITY OF CHALLENGE - JURISDICTION OF HIGH COURT - SCOPE OF JUDICIAL REVIEW - ONUS OF PROOF IN CONFISCATION PROCEEDINGS - SUBSTITUTION OF GOODS - AID AND ASSISTANCE BY CUSTOMS OFFICERS - FULFILMENT OF REQUIREMENTS OF SECTION 137 - IMPOSITION OF PENALTY UNDER SECTION 167(3) AND 167(37).
Fact of the Case:
The petitioner, a clearing agent, was accused of substituting goods before they were shipped, in violation of Sections 29 and 137 of the Sea Customs Act, 1878. The Customs authorities initiated confiscation proceedings against the petitioner under Sections 167(3) and 167(37) of the Act. The petitioner challenged the initiation of the proceedings and the imposition of penalties, arguing that the Sea Customs Act, 1878 had been repealed by the Customs Act, 1962, and that the proceedings were therefore without jurisdiction.
Finding of the Court:
The High Court held that the initiation of the confiscation proceedings under the repealed Sea Customs Act, 1878 was without jurisdiction and that the penalties imposed on the petitioner were therefore void. The Court found that the petitioner had not been given a fair opportunity to defend himself and that the Customs authorities had failed to discharge the onus of proving the commission of the offence.
Issues: 1. Whether the initiation of confiscation proceedings under the repealed Sea Customs Act, 1878 was without jurisdiction? 2. Whether the penalties imposed on the petitioner were void? 3. Whether the petitioner had been given a fair opportunity to defend himself? 4. Whether the Customs authorities had discharged the onus of proving the commission of the offence?
Ratio Decidendi: 1. The Court held that the initiation of the confiscation proceedings under the repealed Sea Customs Act, 1878 was without jurisdiction because the Act had been repealed by the Customs Act, 1962. The Court found that the provisions of Section 160 of the Customs Act, 1962, which provided for the repeal of the Sea Customs Act, 1878, were clear and unambiguous. The Court also found that the provisions of Section 6 of the General Clauses Act, 1897, which dealt with the effect of repeals, did not revive anything that was not in force at the time of the repeal. 2. The Court held that the penalties imposed on the petitioner were void because they were imposed under a repealed Act. The Court found that the provisions of Section 167(3) and 167(37) of the Sea Customs Act, 1878, which provided for the imposition of penalties, were no longer in force after the repeal of the Act. 3. The Court held that the petitioner had not been given a fair opportunity to defend himself because he had not been given proper notice of the charges against him and had not been given an opportunity to cross-examine the witnesses against him. 4. The Court held that the Customs authorities had failed to discharge the onus of proving the commission of the offence because they had not produced any evidence to show that the petitioner had substituted the goods before they were shipped.
Final Decision: The High Court allowed the petition and quashed the confiscation proceedings and the penalties imposed on the petitioner.
( 1 ) THIS Rule was obtained on September 24, 1973, against certain orders made upto revision under the Customs Act, 1962 (hereinafter referred to as the said Act) in respect of two consignments as mentioned hereinafter, meant for export out of India.
( 2 ) THE petitioner, Harchand, has stated to have carried on business, at all material times, under the name and style of Harchand Jawharmal. He has claimed to be the sole proprietor of the firm as mentioned above and has also stated to have carried on such business at premises No. 65, Chittaranjan Avenue, Calcutta. In the Rule, the orders made after revision, in respect of two sets of cases have been impeached. The first case relates to nine consignments under nine shipping bills and the second one relates to four consignments under four shipping bills. So far as the first case is concerned, the relevant orders would be Order No. 21 dated February 18, 1967, as passed by the Additional Collector of Customs, Calcutta; Order No. 492 of 1969, viz. , the appellate order made in the connected appeal by the Central Board of Excise and Customs and Order No. 6a of 1971, which was the revisional order made by the Government of India. The orders relevant for the second case are Order No. 20 dated February 18, which was an order passed in the connected appeal the Central Board of Excise and Customs and Order No. 4a dated January 25, 1971, being the revisional order by the Government of India. For the purpose of effecting the shipments of the concerned consignments, the petitioner appointed one S. A. Wahab, as clearing agent who again has been stated to be associated with one Sri Narayan Ghosh, a licensed Customs House Clearing Agent.
( 3 ) THE material facts, relevant for the connected cases would be available from trie jfacts as stated hereafter. By the said two consignments, the petitioner intended to ship out of India by "s. S. Slaoe" ivory art wears and ladies' plastic hand bags. He has stated that in or about the third week of May 1960, he intended to export out of India, the consignment as mentioned hereinbefore to Malaya. It is his case that for such purpose, on or about May 25, 1960, 25 cases containing such goods were made ready for shipment by the vessel in question. It is his case that for those 25 cases, he prepared 9 shipping bills, particulars whereof are available from the petition and the entries as made in those shipping bills have also been stated to be correct. The petitioner has stated that for effecting the shipments, he presented 9 shipping bills in duplicate to the Export Department of the Calcutta Customs House and obtained an order from them through the Preventive Officer, attached to the concerned vessel for examining the consignments in question and to pass them for shipment, if in order. It is also his case that on May 23, 1960, he applied to the Commanding Officer of the concerned vessel, requesting him to receive on Board the said 25 cases governed by the shipping bills in question and in accordance with the current practice the said cases were brought alongside the vessel on or by May 25, 1960. He has alleged that on May 26, 1960, the Customs Officer attached to the vessel, had sample checking of some cases out of the said 25 cases and found the consignments in question to be in order. Accordingly, it has been stated that the Customs Officer concerned, allowed the cases covered by those shipping bills to be shipped on the vessel, on duly passing neccessary orders on the shipping bills. Thereafter, it has been alleged that necessary documents containing the formal permission issued by the Customs Department, were presented by the petitioner's clearing agent as mentioned above, to the ship's Officer and then the said 25 cases were taken on board the vessel in accordance with the proceduie followed for loading cargo in export vessels. The petitioner has stated that in the matter of examination and passing the consignments, he had nothing to do an
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