Back
1974 Supreme(Ker) 235
High Court of Kerala
Madathimyallil Uthup Isaac, V.B.Eradi, JJ.
Additional Collector Of Customs And Excise Cochin - Appellant
Versus
Ms South Indian Coils Mills & Anr - Respondent
W.A. No. 142 of 1972
Decided On : 09-10-1974
An attempt to export goods in contravention of the prescribed manner under the Foreign Exchange Regulation Act, 1947 attracts liability for confiscation under the Customs Act and renders the exporter liable for penalty.
Headnote:
Customs Act - Attempted Export - Section 113(d) and (i) - Foreign Exchange Regulation Act, 1947 - Section 12(1) - Rule 7 of the Foreign Exchange Regulation Rules, 1952
Fact of the Case:
The case involves the attempted export of coir yarn to Italy, with the consignee falsely stated as a party in Yugoslavia to enable payment in Indian rupees instead of the prescribed manner. The petitioner filed a declaration not in compliance with section 12(1) of the Foreign Exchange Regulation Act, 1947.
Finding of the Court:
The court found that the attempted export in contravention of section 12(1) of the Act attracted liability for confiscation under section 113(d) of the Customs Act, and the petitioner rendered themselves liable for penalty under section 114 of the Customs Act.
Issues: The issues involved the compliance with section 12(1) of the Foreign Exchange Regulation Act, 1947, and the attempted export of goods in violation of the prescribed manner of payment.
Ratio Decidendi: The court held that an attempt to export goods in contravention of section 12(1) of the Act attracts liability for confiscation under section 113(d) of the Customs Act, and the petitioner rendered themselves liable for penalty under section 114 of the Customs Act.
Final Decision: The court allowed the writ appeal, set aside the judgment of the learned Single Judge, and dismissed the Original Petition with costs throughout.
V. Balakrishna Eradi, J.
1. Writ Appeal No. 142 of 1972 is an appeal against the judgment of our learned brother Poti, J. allowing O.P. No. 2840 of 1971 and quashing an order Ext. P-6 dated 6th July, 1971 passed against the writ petitioner by the Additional Collector of Customs and Central Excise, Cochin confiscating 150 bales of coir yarn under section 113 (d) and (i) of the Customs Act, 1962 and imposing a penalty of Rs. 25,000 on the writ petitioner firm on the ground that they had deliberately attempted to export goods against payment in currency other than the currency in which the payment ought to be received as per the rules governing the subject. The appeal has been filed by the Additional Collector of Customs and Central Excise. The writ petitioner Messrs South Indian Coil Mills is the 1st respondent in the appeal.
2. The parties will be hereinafter referred to with reference to the position that they occupied in the writ petition, the Additional Collector being referred to as the 1st respondent and the petitioner in the writ petition as the writ petitioner.
3. The writ petitioner is a firm dealing in coir yarn and in the course of, its business it has been exporting coir yarn to foreign buyers. The proceedings impugned in the writ petition relate to a transaction of attempted export of 150 bales of coir yarn as per a shipping bill dated 24th March 1971. The facts as found by the learned Single Judge are that although the shipping bill as well as the declaration filed by the writ petitioner lender section 12 (1) of the Foreign Exchange Regulation Act, 1947 (hereinafter referred to as the Act) made it appear that the consignee was one Messrs Ferocloktro in Sarajevo, Yugoslavia, in truth, the consignment was going to Italy and the purchaser was Messrs Tobia Giecominigia Casimiro and Co., Spresiano, Treviso, Italy. The name of Ferocloktro, Yugoslavia had been mentioned in the contract only for the purpose of giving the transaction the cloak of a sale to a party in Yugoslavia for the purpose of enabling the payment to be made by the buyer, in Indian rupee currency. Though the petitioner counsel made a feeble attempt to challenge the correctness of the aforesaid finding entered by the learned Single Judge we do not see any merit at all in the said argument. The evidence on record fully supports the said finding.
4. Action was taken against the petitioner under the impugned order Ext. P-6 on the ground that the petitioner had attempted to export goods without complying with the requirements laid down in section 12 (1) of the Act and thereby become liable for penal action under sections 113 and 114 of the Customs Act read with section 23A of the Act. Section 12 (1) of the Act as amended by Act 40 of 1969 reads:
"(1) The Central Government may, by notification in the Official Gazette, prohibit the taking or sending out by land, sea or air (hereinafter in this section referred to as export) of all goods or of any goods or class of goods specified in the notification from India directly or indirectly to any place so specified unless the exporter furnishes to the prescribed authority a declaration in the prescribed form supported by such evidence as may be prescribed or so specified and true in all material particulars which, among others, shall include the amount representing
(i) the full export value of the goods; or
(ii) if the full export value of the goods is not ascertainable at the time of export, the value which the exporter, having regard to, the prevailing market conditions, expects to receive on the sale of the goods in the course of international trade and affirms in the said declaration that the full export value of the goods (whether ascertainable at the time of export or not) has been, or will, within the prescribed period, be paid in the prescribed manner."
Under the aforesaid provision all exporter has to file a declaration containing true particulars relating to the country of destination, the full export valu
