K. Subbaraj vs Government of India

Swamikannu,, J.

This writ petition coming on for hearing on this day upon perusing the petition and the affidavit filed in support thereof the order of the High

Court, dated 4-8-1981 and made herein, and the Counter-affidavit filed herein and the records relating to the order in 1036/81, dated 15-7-1981

on the file of the 1st Respondent comprised in the return of the said respondent to the Writ made by the High Court, and upon hearing the

arguments of Mr. K. C. Rajappa, Advocate for the Petitioner, and of Mr. P. Narasimhan, Senior Central Government Standing Counsel for the

Respondents herein, the Court made the following order. This is a petition for the issue of a Writ of certiorari calling for the records of the case

from the file of the first respondent, namely, the government of India, represented by the Joint Secretary, Ministry of Finance, Department of

Revenue, New Delhi, relating to the order dated 15-7-1981. In order No. 1036 of 1981 and quash the order of the first respondent in Order No.

1036/81, dated 15-7-1981.

It is submitted on behalf of the petitioner that the Intelligence Officer of the Customs House declared the three parcel Bearing Nos. 4284, 2147

and 4042 to contain ""Donation for temple declaration (decoration ?) glass stones - No Commercial Value"". Parcel No. 3906 was declared to

contain ""Glass Stones- NW"" as per the despatch note attached to the said parcels. All the above four parcels were opened, examined and

weighed and the same were found to contain :

Parcel No. Singapore-B/4284 Glass Chattans 5 kgs., valued at 2,500/- C. I. F. .

Parcel No. Singapore-18/2147 Glass chattans 2.4 kgs., valued at Rs. 1,200/- C. I. F.

Parcel No. Singapore-B Glass chattans 5 kgs., valued at Rs. 2,500/- C. I. F.

Parcel No. Singapore-B Glass chattans 5 kgs., valued at Rs. 2,500/-

The value of the above parcels had been declared as no commercial value whereas the goods were of high commercial value. Therefore, the

parcels were seized under a mahazar u/s 10 of the Customs Act, 1962 for further action. It is seen from the order of the Assistant Collector of

Customs, Adjudication, Customs House, Madras dated 5-12- 1979 that the said parcels have rendered themselves liable for confiscation u/s

111(m) of the Customs Act, 1962 read with Section 3(2) of the Imports and Exports (Control) Order, 1947. As per the above provisions, import

of goods is prohibited. However, there is an exemption in paragraph II (1) (gg) of the Imports (Control) Order, 1955 under which goods of value

not exceeding Rs. 500/- c.i.f., are allowed to be imported by post without an Import Trade Control Licence for bona fide personal use. By

importing goods unauthorisedly without a valid licence and rendering them liable to confiscation u/s 11 of the Customs Act, 1962, K. Subbaraj, L.

Jayaraman, P. Dhanraj and V. Natarajan have rendered themselves liable to penal action u/s 112 of the Customs Act, 1962. It is also stated in

paragraph 10 of the above order thus :

Shri K. Subbaraj, L. Jayaraman, R. Dhanraj and V. Natarajan were therefore called upon vide this show cause notice dated 1-9-1979 to show

cause to the Assistant Collector of Customs (Adjudication) Customs House, Madras-1 within ten days from the date of receipt of this memo as to

why the goods value at

respectively should not be confiscated under Sections 111(d) and 111(m). Customs Act and why penalty should not be imposed on each of them

u/s 112, Customs Act, 1962.

Paragraph 13 of the said order dated 5-12-1979 reads as follows :-

Shri K. Subbaraj in his reply dated 27-10-1979 had inter alia stated that he and other senders of the glass stones were devotees of Goddess

ARULMIGU MUNIANHAN AND KALIAMMAN"" that the glass stones were for decorating the Sapparam and Tiruvatchi; that the devotees

seldom declare the value of their offerings; that correct declaration of the goods was made; that the parcels bearing Singapore-B/4284 and

Singapore-B/2147 be released to him of payment of duty or send them back to the place of origin; that the parcels Singapore-B/3906 and

Singapore-B/4042 be returned to the senders. He did not desire to be heard in person

Finally, the Assistant Collector of Customs Adjudication in his above order held that the goods cannot be considered as bona fide and are liable to

confiscation and that he is also convinced that Subbaraju is the person concerned in an attempt to import the goods unauthorisedly into the country

attracting the penal provisions of Section 112 of the Customs Act, 1962. The said order reads thus:-

I hereby order that the goods under seizure covered by Parcel

totally valued at Rs. 8,700/- c.i.f., be confiscated absolutely u/s 111(d) read with Section 3(2) Imports and Exports (Control) Act, 1947. I impose

a penalty of Rs. 500/- on Shri K. Subbaraju u/s 112, Customs Act. 1962. N. B. Personal penalty should be paid forthwith.

Aggrieved by the above order, the petitioner herein preferred an appeal to the Appellate Collector of Customs, Customs House, Madras, and

the same as disposed on on 7-4-1981.

It is observed in the appellate order as follows :-

It is seen four parcel have been sent by the same person in the guise of bona fide gift to different persons to the same address and the persons

concerned denied any knowledge of the parcels. Therefore, there is a clear attempt at smuggling in glass chattans which are of high value

unauthorisedly. The absolute confiscation is in order. The personal penalty is warranted. The appeal accordingly rejected."" ""It is seen four parcels

have been by the same person in the guise of bona fide gift to different persons to the same address and the persons concerned denied any

knowledge of the parcels. Therefore there is a clear attempt at smuggling in glass chattans which are of high value unauthorisedly. The appeal is

accordingly rejected."" Aggrieved by the above appellate order, the petitioner herein preferred a revision to the Joint Secretary of Government of

India, how , his order dated 15-7-1981, rejected the revision application holding that there is no reason to interfere with the order in appeal

passed by the Appellate Collector of Customs which is based on the facts of the case and is correct in law. Aggrieved by the above order in

revision passed by the Joint Secretary to the Government of India, the petitioner has preferred this writ petition.

Mr. K. C. Rajappa, learned Counsel for the petitioner submits that in order to attract the provisions of section 111(d) of the Act, it is but

necessary that the articles described in the Customs Tariff Act, 1975. In other words, the contention raised on behalf of the petitioner is that unless

the glass materials that were confiscated in the instant case come within the purview of the description of the clause glass and the glassware articles

mentioned in Chapter 70 of the Customs Tariff Act, 1975, the procedure adopted by the authorities concerned and the decisions arrived at the by

Assistant Collector of Customs, the appellate authority and the revisional authority are all not in accordance with the law. In this regard, learned

Counsel for the petitioner submits whether the point is raised or not, it is the duty of the authorities concerned to determine the descriptions of each

category of glass material that had been seized and unless the glass and glassware includes also the confiscated materials and the petitioner form

whose custody it has been found to enumerate, cannot be found guilty u/s 111(d) of the Act. It is also submitted that description of the articles

seized do not come within the description of glass and glassware including containers for the conveyance or packing of goods, envelopes for

electric lamps, electronic values or the like as mentioned in sub-heading No. 70.01/16 of the Customs Tariff Act or glass beads, imitation pearls

imitation precious and semi-precious stones and similar fancy or decorative glasswares and articles of glassware made therefore as mentioned in

sub-heading no. 70.19.

Mr. P. Narasimhan, learned senior central Government standing Counsel appearing on behalf of the department,submits that the purpose for

which the articles are stated to have been sent form foreign country to this country by post is for decorating sapparam i. e. planquin which is used

for the purpose of carrying in procession the deity., It is submitted that the authorities concerned have not adverted to this aspect of the matter,

namely whether the confiscated goods, come within the exemption notification or whether they conform to nay of the sub- heading number of

description found in Chapter 70 of the Customs Tariff Act and unless this aspect is clearly gone into and evidence is recorded and a clear of

section 111(d). Since there is no determinations as to which category the articles come under the clause in Chapter 70 of the Customs Tariff Act,

prevailing at the time of confiscation, the proceedings holding the petitioner liable, cannot be upheld as correct and in accordance with law. In this

regard, evidence must necessarily find a place in the proceedings of the Asstt. Collector of Customs who has passed the final order. Neither the

appellate authority not the revisional authority had adverted to this aspect, namely that the commodity that had been seized and upon which

confiscation proceedings had been taken has necessarily to satisfy to the description under Chapter 70 of the Customs Tariff Act so as to proceed

u/s 111(d).

It is pointed out By Mr. P. Narasimhan, senior Central Government Standing Counsel that no point to this effect had been taken by any time

before and it is for the first time the same is raised in this writ petition by the learned counsel for the petitioner. It is relevant to note whether this

aspect which is a legal aspect has been raised or not before is not germane to the point at issue. It is ought to have been gone into by the authorizes

so as to attract the provisions of Section 111(d). It is also pointed out at this stage that the confiscated goods were sold soon after a confiscation.

It is also pointed out at this stage that the confiscated goods were sold soon after confiscation. it is basic principle of law that until the entire

proceedings, including appeal, revision and other proceedings are over the confiscated goods ought to have been kept because it is only on the

basis of the confiscatory nature of the goods ought to have been kept because it is only on the basis of the confiscatory nature of the goods, the

proceedings can be taken either u/s 111(m) of u/s 111(d). In the instant case, the petitioner has been found contravening the provisions of section

111(m) and Section 111(d). In as such as there is no clear finding regarding the nature of the goods seized and confiscated in the instant case and

whether the goods confirm to any of the items in the sub-heading number of the petitioner u/s 111(d) proceeding had been taken against the

petitioner herein. In this regard, learned Senior Central Government Standing Counsel submits that in the present case, the baggage was found to

contain glass materials whose value was more that Rs. 500/- and as such the requirements of the Baggage Rules and Section 82 of the Customs

Act and Section 111(m) were satisfied.

This court is definitely of the view that there must be a clear finding regarding the nature of the glass materials so as to attract the provisions of

Section 111(d) of the Customs Act, 1962 read with Section 3(2) of the import of and Export Control Act, 1947, In other words, there must b a

finding as to which category the confiscated materials belongs under the sub-heading mentioned in Chapter 70 of the Customs Tariff Act. Under

the circumstance, the matter has to be remanded to the first respondent to allow the petitioner to adduce evidence regarding the nature of the mater

and determine whether the goods seized come within the purview of the descriptions mentioned in Chapter 70 of the Customs Tariff Act. 8. In the

result, the writ petition is allowed and the matter is remained to the first respondent for fresh disposal after affording the petitioner an opportunity to

adduce evidence regarding the nature of the materials seized and dispose and of the matter in accordance with law. There will, however, be no

order as to costs.