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1993 Supreme(Cal) 284
High Court Of Calcutta
Paritosh Kumar Mukherjee
HRIDAYANANDA GUPTA - Appellant
Versus
STATE OF WEST BENGAL - Respondent
C. O. 222 Of 1990
Decided On : 06/15/1993
Rabin Pal, SUKUMAR GUHA
The imposition of a penalty under section 112 of the Customs Act, 1962, is subject to the provisions of section 128 and 131 of the Act, and the recovery of such penalty under the Bengal Public Demands Recovery Act, 1913, is subject to the provisions of section 142(1)(a) of the Customs Act, 1962.
Headnote:
CUSTOMS ACT, 1962 - SECTION 112, 128, 131, 142(1)(A) - BENGAL PUBLIC DEMANDS RECOVERY ACT, 1913 - SECTION 5 - IMPOSITION OF PENALTY - NON-COMMUNICATION OF APPELLATE ORDER - JURISDICTION TO INITIATE RECOVERY PROCEEDINGS - REFUND OF SEIZED CASH - INTERPRETATION AND APPLICATION.
Fact of the Case:
The petitioner was penalized for carrying cinnamon in his car, which he claimed was planted by customs officers. He appealed the penalty, but the appellate order was never communicated to him. The customs authorities initiated recovery proceedings under the Bengal Public Demands Recovery Act, 1913.
Finding of the Court:
The court held that the imposition of the penalty was patently bad, and the recovery proceedings were illegal and without jurisdiction. The court also held that the petitioner was entitled to a refund of the penalty and the cash seized from him.
Issues: 1. Whether the imposition of the penalty was valid. 2. Whether the recovery proceedings were legal and within jurisdiction. 3. Whether the petitioner was entitled to a refund of the penalty and the cash seized from him.
Ratio Decidendi: 1. The court held that the imposition of the penalty was patently bad because there was no prima facie case against the petitioner, as he had been discharged in the criminal court and the order of discharge had been upheld by the High Court. 2. The court held that the recovery proceedings were illegal and without jurisdiction because the appellate order in the appeal filed by the petitioner under section 128 of the Customs Act, 1962, had not been communicated to him, and the matter had not reached its finality. 3. The court held that the petitioner was entitled to a refund of the penalty and the cash seized from him because the customs authorities had 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 Customs Act, 1962.
Final Decision: The court quashed the Certificate issued for realization of the penalty, the ultimate order passed in Revision case, and allowed the petitioner to apply for refund of the penalty and the cash seized from him.
( 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.
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 Adjudicatio
