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Case Number

No. 2 of 1976 (In Appeal from Original Order No. 1049 of 1973)

Attorney(S)

Priti Bhusan Burman
Ranajit Ghosh
Mrs. Roma Bhattacharyya
Soumen Bose
Pasupati Nath Chunder

Judges

A.N Sen
S.C Ghose
Amiya Kumar Mookerji, JJ.

Acts

S. 114 of the Customs Act, 1962, for violation of the provisions of S. 12(1) of the Foreign Exchange Regulation Act, 1947,
S. 23A of the Foreign Exchange Regulation Act 1947 the provisions of S. 113 and 114 of the Customs Act 1962
S. 23A of the Foreign Exchange Regulation Act, 1947, the provisions of Ss. 113 and 114 of the Customs Act, 1962
manner.13. Section 23A of the Foreign Exchange Regulation Act provides:23A. Application of Customs Act
provisions of the Customs Act and of the provisions contained in S. 113 in particular. Section 113
provisions contained in S. 23A of the Foreign Exchange Regulation Act, S. 11 of the Customs Act
S. 23A of the Foreign Exchange Regulation Act, Ss. 113 and 114 of the Customs Act
FOREIGN EXCHANGE REGULATION ACT 1947
provisions of the Foreign Exchange Regulation Act and the Customs Act
FOREIGN EXCHANGE REGULATION ACT
S. 2(19) of the Customs Act, 1962. Section 2(19) of the Customs Act, 1962
parties.11. Section 12(1) of the Foreign Exchange Regulation Act, 1947
provision of S. 12(1) of the Foreign Exchange Regulation Act, 1947
provisions contained in Ss. 113 and 114 of the Customs Act, 1962.
provisions of S. 12(1) of the Foreign Exchange Regulation Act
1971 SC 116, S. 12(1) of the Foreign Exchange Regulation Act
S. 12(1) of the Foreign Exchange Regulation Act, 1947
S. 11 of the Customs Act take effect. Section 113(d)
S. 12 of the Foreign Exchange Regulation Act 1947
Foreign Exchange Regulation Amendment Act, 1949
S. 113(d) and (i) of the Customs Act, 1962.Euresian
S. 12(1) of the Foreign Exchange Regulation Act,
provisions of S. 113 of the Customs Act 1962,
section to attract S. 11 of the Customs Act
u/s. 114(1) of the Customs Act, 1962. Euresian
S. 113 or S. 114 of the Customs Act, 1962.(ii)
S. 113 read with S. 2(19) of the Customs Act.
provision in S. 147 of the Sea Customs Act
S. 114 of the Customs Act, the said Section
S. 11 of the Customs Act, 1962 (52 of 1962),
Foreign Exchange Regulation Rules, 1952.
provisions of S. 11 of the Customs Act
SECTION 114 A CUSTOMS ACT 1962
S. 2(12) of the Customs Act, 1962.(iii)
Ss. 113 and 114 of the Customs Act
S. 113 and 114 of the Customs Act
S. 113(d) and (i) of the Customs Act.
S. 113(1) of the Customs Act, 1962,
S. 113(d) of the Customs Act, 1962
S. 2(19) of the Customs Act 1962
S. 114 of the Customs Act 1962
S. 51 of the Customs Act, 1962
S. 11 of the Customs Act 1962
S. 14 of the Customs Act, 1962
S. 11 of the Customs Act.24.
S. 113(1) of the Customs Act
S. 2(19) of the Customs Act
S. 114 of the Customs Act
S. 113 of the Customs Act
S. 124 of the Customs Act
S. 11 of the Customs Act
S. 51 of the Customs Act
Rule 2 read with Rule 7,
S. 114.(iii) Section 113
Act 40 of 1969 S. 12(1)
S. 114 of Customs Act
CUSTOMS ACT 1962

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Smart Summary

Summary of Full Bench Opinion (Calcutta High Court) — Key Findings and Reasoning

Factual and Procedural Background

The petitioners are a limited company (Euresian Equipments and Chemicals Ltd.) and its directors who exported consignments of bismuth compounds from Calcutta between 1967–1971. The Deputy Collector of Customs, Exports, issued a show-cause notice dated 28 January 1972 alleging that 11 consignments exported to Hong Kong were accompanied by untrue and incorrect declarations in shipping bills and G.R.I. forms, contrary to S.12(1) of the Foreign Exchange Regulation Act, 1947 (FERA), as amended. The notice alleged that, by virtue of S.23A of FERA, the contravention amounted to a violation of S.11 of the Customs Act, 1962 and that the goods were therefore liable to confiscation under S.113(d) and (i) and the persons concerned liable to penalty under S.114 of the Customs Act.

The appellants challenged the validity of the notice by filing a writ petition under Article 226. The trial judge (P.K. Banerjee, J.) considered affidavits and the law (including a Supreme Court decision) and dismissed the petition, discharging the rule. The appellants appealed. A Division Bench of this Court observed conflicting Division Bench decisions on the questions raised and referred the matter to a Full Bench under the Appellate Side Rules. The Full Bench heard the matter and delivered the opinion summarized here.

Legal Issues Presented

Whether, by virtue of S.23A of the Foreign Exchange Regulation Act, 1947, the provisions of Ss.113 and 114 of the Customs Act, 1962 are attracted for contravention of S.12(1) of the Foreign Exchange Regulation Act, 1947, in relation to goods which had been exported beyond India.
Whether, when goods have been exported beyond India, such goods may be said to be "export goods" as defined in S.2(19) of the Customs Act, 1962 and liable to confiscation under S.113 for the purpose of imposition of penalty under S.114 of the said Act.
Whether the show-cause notice dated 28 January 1972 issued under S.114 of the Customs Act, 1962 (alleging violation of S.12(1) FERA) was valid on the face of the allegations contained therein.

Arguments of the Parties

Appellant's Arguments (as recorded for Mr. Burman)

The Customs authorities lacked jurisdiction to initiate proceedings under the Customs Act for alleged violations of S.12(1) FERA; even if contraventions existed, those were not matters for Customs.
Even assuming a violation of S.12(1) FERA, Ss.113 and 114 of the Customs Act cannot apply because the goods had already been exported; S.113 applies, so the argument runs, only to goods which are to be taken out of India (i.e., goods yet to be exported, or "attempted to be exported").
On a plain reading S.113 speaks of "export goods" and contains wording such as “attempted to be exported”; the legislature omitted language appearing in the earlier Sea Customs Act (words like “and also exported”), and therefore intended S.113 to exclude goods already exported.
Prior Division Bench decisions (Jute Investment Co. Ltd. v. S.K. Srivastava; Thomas Duff & Co.) support the proposition that goods already exported cannot be “export goods” under S.2(19) and that Ss.113/114 do not apply where export has already occurred. The Division Bench decision in United India Minerals (which came to a contrary conclusion) was criticised as not adequately considering earlier authorities.
The amendment to S.12(1) FERA did not change the legal position relevant to S.113/114; S.23A FERA exists regardless and cannot operate to bring about a retrospective or expanded jurisdiction to penalise exporters after the goods have sailed.

Respondent's Arguments (as recorded for Mr. Bose / Customs Authority)

The appellants, to succeed in quashing the notice, must show that even assuming the allegations in the notice are true the authority had no jurisdiction — but the allegations do make out a case attracting Customs jurisdiction.
By virtue of S.23A FERA, contraventions of S.12(1) (as amended) are deemed to be imposed under S.11 of the Customs Act, and therefore all provisions of the Customs Act, including Ss.113 and 114, are applicable.
S.113 does not require that physical confiscation be possible; it prescribes the circumstances in which export goods incur liability to confiscation (e.g., attempted export contrary to prohibition), and such liability attaches at the time of the attempt irrespective of whether the goods are later exported.
S.114 imposes personal liability on persons whose acts or omissions render goods liable to confiscation under S.113. Therefore, personal penalties can be imposed even if physical confiscation of exported goods is impossible.
Interpreting Ss.113 and 114 to permit escape from penalty whenever ill-gotten exports succeed would frustrate the statute's object of protecting the economic interest of the country; these are socio-economic statutes and should be construed to advance their objects.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jnte Investment Company Ltd. v. S.K. Srivastava, 77 CWN 501	Division Bench held that goods already exported pursuant to orders under S.51 could not be deemed "export goods" under S.2(19) and that omissions/incorrect particulars pre-amendment did not contravene S.12(1) FERA so as to attract S.113/S.114 Customs Act.	The Full Bench noted this earlier Division Bench decision but held that its views (to the extent inconsistent with the Full Bench's interpretation) must be overruled. The Full Bench distinguished pre-amendment law from the law after amendment of S.12(1) and did not adopt the restrictive construction in so far as it conflicted with the Full Bench's conclusions.
Thomas Duff & Co. (India) Pvt. Ltd. v. Collector of Customs, Appeal No. 258 of 1971 (disposed Oct 3, 1975), (1976 CHN 242 : 80 CWN 305)	Division Bench set aside show-cause notices where goods had already been exported; held goods already shipped were no longer "export goods" within S.2(19), and duty having been paid they were not dutiable/prohibited so as to attract S.113(i).	The Full Bench observed this decision but concluded that views expressed in such Division Bench decisions must be overruled to the extent contrary to the Full Bench's holdings that liability under Ss.113 and 114 can attach even where goods have been exported.
Assistant Collector of Customs v. United India Minerals, (reported 79 CWN 900; AIR 1976 Cal. 21)	Division Bench held that Customs authorities have jurisdiction to impose personal penalties under S.114 even where the goods have already been exported; provided detailed reasoning (enumerated points) supporting personal liability and the notional accrual of confiscation-liability at the attempted-export stage.	The Full Bench expressly approved the Division Bench's views in so far as they accorded with the Full Bench's reasoning and applied the same reasoning to hold that S.23A brings Ss.113 and 114 into play even when goods have been exported.
Union of India v. Rai Bahadur Sriram Durgaprasad (P) Ltd., (majority) (cited as 1970 SC 1957 / AIR 1970 SC 1597 in the opinion)	Supreme Court majority held that, prior to amendment of S.12(1) FERA, an incorrect or untrue statement in the declaration required by S.12(1) did not amount to a violation of that section; hence S.23A deeming to S.11 Customs Act did not arise and Customs lacked jurisdiction to act under S.113/S.114 on that basis.	The Full Bench treated this decision as relevant to the pre-amendment position; it observed that the Supreme Court's majority holding led to the subsequent amendment of S.12(1). The Full Bench considered that post-amendment law is different and that incorrect declarations now fall within S.12(1).
Beekar / Becker Gray & Co. v. Union of India, AIR 1971 SC 116	The Supreme Court refused to refer the earlier Rai Bahadur decision to a larger Bench and reiterated the earlier majority view.	The Full Bench noted this affirmation of the Supreme Court on the pre-amendment construction, but emphasized the legislative amendment of S.12(1) and later Supreme Court treatment of the amended provision (see South India Coir Mills).
South India Coir Mills, Poockakkal v. The Additional Collector of Customs & Central Excise, (cited in the opinion as AIR 1976 SC 8527 / AIR 1976 SC 1527)	Supreme Court considered S.12(1) after its amendment and held the Collector justified in imposing penalty and confiscation (though reduced the penalty amount); the Court treated incorrect declarations in material particulars as falling under the amended S.12(1).	The Full Bench relied on the Supreme Court's post-amendment treatment to conclude that untrue declarations in material particulars now amount to violation of S.12(1) and thus, via S.23A FERA, attract S.11 Customs Act and the provisions (including Ss.113/114) that flow from it.
I.J. Rao v. Bibhuti Bhusan Bag (Appeal No. 29 of 1969) — Division Bench observation (cited)	Division Bench observed that even if detention/return of goods occurs, Customs Authorities retain jurisdiction to proceed against persons and impose personal liability/fines under Customs Act.	The Full Bench cited the observation to support the proposition that personal liability under Customs law can survive issues relating to the physical confiscation or retention of goods and to support its rejection of the proposition that successful export absolves personal liability.
Shaikh Mohammed Sayeed v. Assistant Collector of Customs (Appeal No. 122 of 1969)	Another Division Bench supporting the view that Customs authorities can pursue personal penalties even if goods are returned or confiscation cannot be effected physically.	Referenced by the Full Bench in affirming that personal liability (S.114) may be enforced even where physical confiscation of the goods is not possible.

Court's Reasoning and Analysis

The Full Bench proceeded through a textual and purposive analysis of the relevant statutory provisions:

Interpretation of S.12(1) FERA (post-amendment): The Full Bench observed that after amendment (Act 40 of 1969) S.12(1) requires that an exporter furnish a declaration "true in all material particulars," and that an untrue declaration in material particulars therefore amounts to contravention of S.12(1). The opinion relied on subsequent Supreme Court treatment (South India Coir Mills) to confirm that post-amendment the provision reaches untrue declarations in material particulars.
Effect of S.23A FERA (deeming clause): S.23A provides that restrictions under sub-s. (1) of S.12 shall be deemed to have been imposed under S.11 of the Customs Act and "all the provisions of that Act shall have effect accordingly." The Full Bench treated S.23A as bringing violations of S.12(1) within the ambit of S.11 Customs Act.
Nature and operation of S.113 Customs Act: S.113 prescribes the circumstances in which "export goods" become liable to confiscation — notably where goods are attempted to be exported contrary to prohibition (S.113(d)) or do not correspond with particulars in the entry (S.113(i)). The court emphasized that S.113 deals with the incurring of liability to confiscation (a legal consequence) and not the physical act of confiscation itself.
Timing and definition of "export goods" under S.2(19): "Export goods" are goods "which are to be taken out of India to a place outside India." The Full Bench reasoned that at the stage when an attempt to export is made the goods are, in law, "export goods" and may incur liability under S.113 at that stage; the attempt necessarily precedes any successful physical export.
Relationship between liability to confiscation and personal penalty: Once goods incur liability to confiscation under S.113, S.114 attaches personal liability to any person whose act or omission rendered the goods liable to confiscation. This personal liability is not contingent on the possibility of actual physical confiscation.
On whether actual export extinguishes liability: The Full Bench rejected the argument that successful export erases the earlier accrued liability. The court held there is no provision in the Act that the accrued liability to confiscation is wiped out by subsequent export; while physical confiscation may become impossible, personal liability under S.114 remains enforceable.
Application to the facts and validity of the notice: The allegations in the show-cause notice, if taken as true for the purposes of this jurisdictional review, made out a case of incorrect declarations under amended S.12(1), thereby engaging S.23A and S.11 Customs Act, and consequently attracting Ss.113(d) & (i) and S.114. As such, it could not be said that the notice was without jurisdiction.
S.51 clearance: The court observed that an order under S.51 (clearance and loading) does not affect the position that liability under Ss.113/114 may arise where an attempt to export contrary to prohibition is made.
Material time for assessing applicability of Ss.113/114: The court emphasized that the relevant time is when the alleged offence was committed (the attempt), not the time when the show-cause notice was issued.

Holding and Implications

Holding:

APPEAL DISMISSED; Reference Answered

The Full Bench held that:

By virtue of S.23A of the Foreign Exchange Regulation Act, contraventions of S.12(1) FERA (as amended) are deemed to be contraventions of S.11 of the Customs Act, and therefore the provisions of the Customs Act — including Ss.113 and 114 — are attracted.
S.113 describes the circumstances in which export goods incur liability to confiscation; that liability accrues at the stage when an attempt to export contrary to prohibition is made. At that stage the goods are "export goods" within S.2(19).
Accrued liability to confiscation is not extinguished by subsequent successful export; while physical confiscation may become impracticable, personal liability under S.114 remains enforceable.
The specific show-cause notice dated 28 January 1972, on the face of its allegations, was valid and within jurisdiction; the trial judge's dismissal of the writ petition was upheld and the appeal was dismissed by the Full Bench.

Implications (direct effects and broader consequences identified in the opinion):

Direct effect on parties: The appellants' appeal fails; the show-cause notice stands as a valid initiation of proceedings under Ss.113/114 (via S.23A) and adjudication on the merits remains to be carried out in the statutory proceedings.
On enforcement: Customs authorities retain power to pursue personal penalties under S.114 even where goods exported illegally cannot be physically confiscated; liability to penalty survives the physical export.
On precedent: The Full Bench stated that previous Division Bench decisions (notably Jute Investment Co. Ltd. and Thomas Duff & Co.) that are inconsistent with this Full Bench's conclusions are overruled to that extent. The Full Bench expressly approved the reasoning in the Division Bench decision in Assistant Collector of Customs v. United Minerals in so far as that reasoning accords with its own conclusions.
Costs: Because of confusion and conflicting decisions on the legal position, the Full Bench made no order as to costs.

Reference answered; appeal dismissed (per bench: S.C. Ghose, A. K. Mukherji — both agreeing; S. A. N. Sen delivering the opinion joined by others).

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M/S. Euresian Equipments And Chemicals Ltd. & Ors. v. The Collector Of Customs & Ors.

A.N Sen, J.:—At the hearing of this appeal from the judgment and order passed by P.K Banerjee, J. on the 23rd or March, 1973, discharging the rule and dismissing the petition filed by the appellant under Art. 226 of the Constitution before a Division Bench of this court consisting of Sabyasachi Mukharji, and Murari Mohan Dutt, JJ., the Division Bench noted that from the contentions made on behalf of the parties before them the following points arose for consideration:—

(1) Whether, by virtue of S. 23A of the Foreign Exchange Regulation Act, 1947, the provisions of SS. 113 and 114 of the Customs Act, 1962 are attracted for the contravention of S. 12(1) of the Foreign Exchange Regulation Act, 1947, in relation to goods which had been exported beyond India.

(2) Whether, when goods have been exported beyond India such goods may be said to be “export goods” as defined in S. 2(19) of the Customs Act, 1962 and liable to confiscation under S. 113 for the purpose of imposition of penalty under S. 114 of the said Act.

2. The Division Bench noticed that the above points had come up for consideration before other Division Benches of this Court but the decisions of the Division Benches were conflicting. As, according to the Division Bench there was a conflict of decisions of the Division Benches of this Court, the Division Bench referred the appeal for final decision to a Full Bench under Rule 2 read with Rule 7, Part II, Chapter VII of the Appellate Side Rules.

3. In referring this appeal for final decision to a Full Bench, the Division Bench in its judgment delivered by M.M Dutt, J., Sabyasachi Mukherji J. agreeing with him, had recorded after setting out the above points which arose for their consideration:— “The above points came up for consideration before the Division Bench of this Court but the decisions of the Division Bench are conflicting. In Jnte Investment Company Ltd. v. S.K Srivastava 77 CWN 501, a Division Bench of this Court has held that goods which have already been exported pursuant to an order made under S. 51 of the Customs Act, 1962 cannot be deemed to be export goods as defined in S. 2(19) of the Customs Act, 1962. The same view has been expressed in a subsequent Bench decision of this Court in Thomas Duff and Co. (India) Pvt. Ltd. v. Collector of Customs, in Appeal No. 258 of 1971, disposed of on October 3, 1975, (1976 CHN 242 : 80 CWN 305). On the other hand it has been held by another Division Bench presided over by S.P Mitra, C.J in Assistant Collector of Customs v. United India Minerals, 79 CWN 900, that an attempt to export goods contrary to the prohibition imposed by the Customs Act 1962 or any other law for the time being in force is punishable under S. 114 of the said Act irrespective of the fact that exportation has already taken place. Further it has been held that a clearance under S. 51 of the said Act does not prevent the authorities from taking other steps open to them under the statute.”

4. The main question involved in the appeal under consideration is whether the notice dated 28th January, 1972 issued by the Deputy Collector of Customs, Exports, calling upon the appellants to show cause why penal action should not be taken against them under S. 114 of the Customs Act, 1962, for violation of the provisions of S. 12(1) of the Foreign Exchange Regulation Act, 1947, is valid.

5. The material facts in brief may be noted. The applicant No. 1 is a limited Company registered under the Companies Act and the other appellants are the Directors of the Company. The appellants have been carrying on business amongst others of export of Bishmuth sub-nitrate B.P and Bishmuth Citrate B.P.C 49 from Calcutta since 1967-1968 and exported about 45 consignments of the same mainly to Amsterdam and Hongkong earning Foreign Exchange amounting to about rupees fifty lacs up to 1971. On the 20th January, 1972, a notice was issued to the appellants by the Deputy Collector of Customs asking them to show cause why penal action should not be taken against them under section 114 of the Customs Act, 1962. In the said show cause notice it has been alleged that the appellant company exported 11 consignments to Modist Corporation, Golden Crown Court, 6th floor Kowloon, Hongkong against shipping bills between 29th December, 1969 and 16th June, 1970 and the description of the value of the goods covered by the above shipping bills were incorrectly and untruly declared in the shipping bills as well as in the relative G.R.I Forms. The relevant portion of the notice which sets out in details the various allegations against the appellants for issuing the same reads:—

“Euresian Equipments and Chemicals Ltd. & Ors., Calcutta, therefore, appear to have contravened the provision of S. 12(1) of the Foreign Exchange Regulation Act, 1947 as amended by the Foreign Exchange Regulation Amendment Act, 1949 read with Government of India, Ministry of Finance (EAD) Notification No. G.S.R 2641 dated 14.11.69 Sri Lakshmi Prasad Jajodia, a director of Euresian Equipments and Chemicals Ltd. Calcutta signed the 11 shipping bills confirming the truth of the declarations of those shipping bills and also the G.R.I Forms. The total quantity and F.O.B value of the goods covered by the said 11 shipping bills are 9465 K.G and Rs. 1237706.30 P. respectively, while the value of Magnesium Silicate for the equivalent quantity is Rs. 28325 (approx) at the rate of Rs. 3 per K.Gs Shri Manik Chand Jajodia and Jugal Kishore Jajodia, directors of Euresian Equipment and Chemicals Ltd. Calcutta, also actively helped in the matter of export of the above eleven consignments by issuing bearer cheques in favour of fictitious and non-existing suppliers of Bishmuth Citrate, which goods were subsequently alleged to have been exported to Modist Corporation, as will be evident from relative stock books and accounts register stated in the foregoing para.

By virtue of the amendment of Foreign Exchange Regulation Act, 1947 it was necessary for the exporter to submit the G.R.I Forms declaration true in all material par iculars under the provisions of S. 12(1) of the said Act. Since this was not done the export of the goods were liable to prohibition under the above notification No. G.S.R 2641 dated 14.11.69 By virtue of S. 23A the prohibition also falls under S. 11 of the Customs Act, 1962, and hence the goods were liable to confiscation under S. 113(d) and (i) of the Customs Act, 1962.

Euresian Equipments and Chemicals Ltd. Calcutta, S/Sri Laxmi Prasad Jajodia, Manik Chand Jajodia and Jugal Kishore Jajodia are the persons concerned for the misdeclaration of the goods and values of the goods exported and hence liable for penal action u/s. 114(1) of the Customs Act, 1962. Euresian Equipments and Chemicals Ltd. Calcutta and its directors S/Sri Laxmi Prasad Jajodia, Manik Chand Jajodia and Jugole Kishore Jajodia are hereby called upon to explain the matter in writing and to show cause to the Collector of Customs, Calcutta, why penal action under S. 14 of the Customs Act, 1962 should not be taken against them,”

6. The validity of the said notice was challenged by the appellants in a writ petition filed under Article 226 of the Constitution. The said writ petition of the appellants came up for final disposal before P.K Banerjee, J. after rule had been issued and affidavits completed. The main contentions raised on behalf of the appellants who were the petitioners before the learned trial Judge as recorded in the judgment of the learned trial Judge, were that the show cause notice was without jurisdiction and void on the grounds, namely, (1) Even assuming that there was violation of the Foreign Exchange Regulation Act in particular S. 12(1) of the Act, the respondent Customs authority did not have any jurisdiction to initiate the proceeding under the Customs Act and (2). In any case the goods having been exported the offence, if any, could not come within the mischief of S. 114 of the Customs Act, 1962. In support of the aforesaid contentions raised before the learned trial Judge reliance was placed on the judgment of the Division Bench in the case of Jute Investment Co. Ltd. v. S.K Srivastava, 77 CWN 501 and also on the decision in the case of United Minerals v. Assistant Collector of Customs, reported in 1971 Criminal Law Journal 1370.

7. It was contended on behalf of the respondent Customs Authority that the aforesaid two decisions had no application as the said decisions were before the amendment of S. 12(1) of the Foreign Exchange Regulation Act. It was argued that the show cause notice was issued under S. 114 of the Customs Act, 1962 on the allegation that there was a contravention of S. 12(1) of the Foreign Exchange Regulation Act, 1947 after its amendment and the goods were therefore liable to confiscation under S. 113(d) of the Customs Act, 1962 and the petitioners were liable to penaly under S. 114 of the Customs Act. The learned trial Judge considered the relevant provisions of the Foreign Exchange Regulation Act and the Customs Act and also the decision of the Supreme Court in the case of Union of India v. Rai Bahadur Sriram Durgaprasad (P) Ltd. 1970 SC 1957. The learned trial Judge held:

“If there is violation of S. 12(1) of the Act or in the other words in the present case if there is an incorrect declaration of the goods exported such contravention coming within the mischief of S. 23A of the Act will be violation of the Customs Act and all the sections and provisions of the Customs Act will have effect as if the contravention is violation of S. 11 of the Customs Act. If that is so and if the allegation is that the declaration under the Foreign Exchange Regulation Act is incorrect then the export made was without the permit. If the export is without permit then the goods came within the mischief of prohibited goods as defined in S. 2(33) of the Customs Act read with S. 11 of the Act. As soon as S. 11 is attracted Ss. 113 and 114 are also attracted. Mr. Burman, however, contended that S. 113 and 114 do not apply as the goods had already been exported. In my opinion, S. 23A of the Foreign Exchange Regulation Act is a deeming provision and in so far as the goods already exported without a proper declaration under S. 12(1) of the Foreign Exchange Regulation Act are deemed to be prohibited goods under S. 11 read with S. 2(38) of the Customs Act.”

The learned Judge further held—“If there is any misdeclaration in respect of the matter coming within the meaning of S. 12(1) of the Foreign Exchange Regulation Act this will amount to contravention of the Customs Act. That means if the export is made on the basis of incorrect declaration under S. 12(1) of the Foreign Exchange Regulation Act, this will amount to convention of the Customs Act. That means if the export is made on the basis of the incorrect declaration under S. 12(1) of the Act, S. 11 of the Customs Act will be attracted and with that all the provisions of the Customs Act shall have effect.” In that view of the matter the learned trial Judge dismissed the petition and discharged the rule.

8. This appeal has been preferred by the petitioners against the said judgment and order of the learned Judge.

9. As we have earlier noticed this appeal came up for hearing before a Division Bench of this court consisting of Sabyasachi Mukharji, and M.M Dutt, JJ. who have referred this appel to the Full Bench.

10. Before we proceed to note the various arguments advanced on behalf of the parties it will be convenient to set out the material provisions of the relevant statutes to which reference was made in course of the submissions made on behalf of the parties.

11. Section 12(1) of the Foreign Exchange Regulation Act, 1947 prior to its amendment by Act 40 of 1969, was in the following terms:

“The Central Government may, by notification in the Official Gazette, prohibit the taking or sending out by land, sea or air, (hereafter in this section referred to as export) of any goods or class of goods specified in the notification from India directly or indirectly to any place so specified unless a declaration supported by such evidence as may be prescribed or specified, is furnished by the exporter to the prescribed authority that the amount representing the full export value of the goods have been, or will within the prescribed period be paid in the prescribed manner.”

12. By Act 40 of 1969 S. 12(1) was amended and the following provision was substituted:—

“The Central Government may, by notification in the Official Gazette, prohibit the taking or sending out by land, sea or air (hereafter in this section referred to as export) of all goods or 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) 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 affirm 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.”

13. Section 23A of the Foreign Exchange Regulation Act provides:—

“23A. Application of Customs Act 1962—

Without prejudice to the provisions of S. 23 or to any other provisions contained in this Act, the restrictions imposed by or under sub-s. (1) and (2) of S. 8, sub-s. (1) of S. 12 and Clause A of sub-s. (1) of S. 13 shall be demmed to have been imposed under S. 11 of the Customs Act, 1962 (52 of 1962), and all the provisions of that Act shall have effect accordingly.”

14. We shall now note the relevant provisions of the Customs Act.

“Section 2(18) “export” with its grammatical variations and cognate expressions, means taking out of India to a place outside India;

(19) “export goods” means any goods which are to be taken out of India to a place outside India;

(22) “goods includes—

(a) vessels, aircrafts and vehicles;

(b) stores;

(d) currency and negotiable instruments; and

(e) any other kind of movable property;

(27) “India” includes the territorial waters of India;

(33) “prohibited goods” means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with”

“Section 11. Power to prohibit importation or exportation of goods:—

(1) If the Central Government is satisfied that it is necessary so to do for any of the purposes specified in sub-s. (2), it may, by notification in the Official Gazette, prohibit either absolutely or subject to such conditions (to be fulfilled before or after clearance) as may be specified in the notification, the import or export of goods of any specified description.

(2) The purposes referred to in sub-s. (1) are the following:

(a) the maintenance of the security of India.

(b) the maintenance of the public order and standards of decency or morality;

(d) the prevention of shotage of goods of any description;

(e) the conservation of foreign exchange and the safeguarding of balance of payment;

(f) the prevention of injury to the economy of the country by the uncontrolled import or export of gold or silver;

(g) the prevention of surplus of any agricultural product or the product of fishries;

(h) the maintenance of standards for the classification, grading or marketing of goods in international trade;

(i) the establishment of any industry;

(j) the prevention of serious injury to domestic production of goods of any description;

(k) the protection of human, animal or plant life or health:

(l) the protection of national treasures of artistic historic or archaeological value;

(m) the conservation of exhaustible natural resources;

(n) the protection of patents, trade marks and copyrights;

(o) the prevention of deceptive practices:

(p) the carrying on of foreign trade in any goods by the State, or by a Corporation owned or controlled by the State to the exclusion, complete or partial, or citizens of India;

(q) the fulfilment of obligations under the Charter of the United Nations for the maintenance of international peace and security;

(r) the implemention of any treaty, agreement or convention with any country;

(s) the compliance of imported goods with any laws which are applicable to similar goods produced or manufactured in India;

(t) the prevention of dissemination of documents containing any matter which is likely to prejudicially affect friendly relations with any foreign State or is derogatory to national prestige;

(u) the prevention of the contravention of any law for the time being in force; and

(v) any other purpose conducive to the interests of the general public.”

“Section 113. Confiscation of goods attempted to be improperly exported, etc.—The following export goods shall be liable to confiscation.

(a) any goods attempted to be exported by sea or air from any place other than a customs port or a customs airport appointed for the loading of such goods;

(b) any goods attempted to be exported by land or inland water through any route other than a route specified in a notification issued under clause

(c) Any dutiable or prohibited goods brought near the land frontier or the coast of India or near any bay, gulf, creek or tidal river for the purpose of being exported from a place other than a land customs station or a customs port appointed for the loading of such goods;

(d) Any goods attempted to be exported or brought within the limits of any customs area for the purpose of being exported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force;

(e) any dutiable or prohibited goods found concealed in a package which is brought within the limits of a customs area for the purpose of exportation;

(f) any dutiable or prohibited goods which are loaded or attempted to be loaded in contravention of the provisions of S. 33 of S. 34;

(g) any dutiable or prohibited goods loaded or attempted to be loaded on any conveyance or water-borne, or attempted to be water-borne for being loaded on any vessel, the eventual destination of which is a place outside India, without the permission of the proper Officer;

(h) any dutiable or prohibited goods which are not included or are in excess of those included in the entry made under this Act, or in the case of baggage in the declaration made under S. 77;

(i) any dutiable or prohibited goods which do not correspond in any material particular with the entry made under this Act or in the case of baggage with the declaration made under S. 77 in respect thereof;

(j) any goods on which import duty has not been paid and which are entered for exportation under a claim for drawback under S. 74;

(k) any goods cleared for exporation under a claim for drawback which are not loaded for exportation on account of any wilful act, negligence or default of the exporter, his agent or employee, or which after having been loaded for exportation are unladed without the permission of the proper officer;

(l) any specified goods in relation to which any provisions of Chapter IV-B or of any rule made under this Act for carrying out the purposes of that Chapter have been contravened.”

“114. Penalty for attempt to export goods improperly, etc.—Any person, who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under S. 113, or abets the doing or omission of such an act, shall be liable,—

(i) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty not exceeding five times the value of the goods or one thousand rupees, whichever is the greater;

(ii) in the case of dutiable goods, other than prohibited goods, to a penalty not exceeding five times the duty sought to be evaded on such goods or one thousand rupees, whichever is the greater;

(iii) in the case of goods under claim for drawback, to a penalty not exceeding five times the amount of drawback, claimed or one thousand rupees, whichever is the greater.”

“S. 124. Issue of show-cause notice before confiscation of goods, etc.—No order confiscating any goods or imposing any penalty on any person shall be made under this Chapter unless the owner of the goods or such person—

(a) is given a notice in writing informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty;

(b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation or imposition of penalty mentioned therein; and

Provided that the notice referred to in clause (a) and the representation referred to in clause (b) may, at the request of the person concerned, be oral.”

15. Mr. Burman, the learned advocate appearing on behalf of the appellants, has submitted before us that the restrictions imposed under S. 12(1) of the Foreign Exchange Regulation Act, 1947, shall by virtue of the provisions contained in S. 23A of the said Act, be deemed to be restrictions imposed under S. 11 of the Customs Act, 1962. It is his submission that any violation of the prohibition or restriction imposed under S. 12(1) of the Foreign Exchange Regulation Act 1947, will, therefore, be deemed to be a violation of the prohibition or restriction of S. 11 of the Customs Act, by virtue of the provisions contained in S. 23A of the Foreign Exchange Regulation Act, 1947. He argues that violation of S. 11 of the Customs Act will bring into effect the provisions contained in the said Act dealing with such violation. It is, however, his argument that even assuming that there has been a violation of S. 11 of the Customs Act in consequence of any violation of S. 12(1) of the Foreign Exchange Regulation Act, because of the deeming provision contained in S. 23A of the Foreign Exchange Regulation Act, SS. 113 and 114 of the Customs Act cannot have any application in the instant case, as the goods in respect of which the violation is alleged had already been exported. Referring to the provisions of S. 113 of the Customs Act 1962, Mr. Burman contends that on a true construction of the said section, the said section cannot be said to have any application to a case where goods have actually been exported, even if the goods might have been exported in violation of any prohibition or restriction under S. 11 of the Act. It is the contention of Mr. Burman that on a plain reading of S. 113 of the Customs Act, there can be no room for doubt that the said section applies only to goods which have not in fact been exported. Mr. Burman has pointed out that S. 113 commences with the words “the following export goods shall be liable to confiscation”, and he argues with reference to the definition of export goods in S. 2(19) of the Act that ‘export goods’ only means goods which are to be taken out of India to a place outside India and therefore, can never mean or include goods which have already been taken out of India to a place outside India. He has drawn our attention to the provisions contained in clauses (a), (b) and (d) and has argued that the provisions therein stipulate in clear and unambiguous language “any goods attempted to be exported”. It is his argument that on a plain reading of S. 113 of the Customs Act, it is clear that the said section only applies to export goods at the time when such goods are attempted to be exported and will have no application when the goods have in fact been exported. He has pointed out that in the corresponding provision in S. 147 of the Sea Customs Act the words used were “both attempted to be exported and also exported” and in the present Customs Act the words “and also exported” have been omitted. He contends that the legislature must have advisedly omitted the said words, as the legislature has intended that S. 113 will only apply to a case when export goods are attempted to be exported and will not apply when goods have in fact been exported. In support of his contention that export goods do not mean and include goods already exported and S. 113 of the Customs Act will have no application to goods already exported, Mr. Burman has relied on the decision of the Division Bench of this Court in the case of Jute Investment Co. Ltd. v. S.K Srivastava, 77 CWN 150 and Thomas Duff & Co. (India) Pvt. Ltd. v. Collector of Customs 1976 Calcutta High Court Notes 242 (also reported in 80 CWN 309). Mr. Burman has also referred to the judgment of Sabyasachi Mukherji, J. in the case of United India Minerals Ltd. v. The Assistant Collector of Customs, Special Section, Calcutta, reported in 1971 Criminal Law Journal 1370. Mr. Burman has pointed out that this judgment was reversed on appeal by Division Bench and the judgment of the Division Bench is reported in AIR 1976 Cal. 21 (also reported in 79 CWN 900). Mr. Burman has commented that because of the judgment of the Division Bench in the case of Assistant Collector of Customs, Special Section, Calcutta v. United India Minerals Ltd. AIR 1976 Cal. 26 (also reported in 79 CWN 900) the present Full Bench reference has been made, as this judgment appears to be in conflict with the two earlier decisions of the Division Benches of this Court. Mr. Burman has criticised the decision of the Division Bench in AIR 1976 Cal. 21, (79 CWN 900), mainly on the ground that in this judgment the court did not properly consider the judgment of the Division Bench in the case of Jute Investment Co. Ltd. 77 CWN 501 which was cited before the Court. It is also the criticism of Mr. Burman that no cogent reasons have been given for the views taken and the Court has not correctly construed the provisions of the Customs Act and the view expressed to the effect that “that words ‘would render such goods liable to confiscation’ in S. 114 have been used in a notional or hypothetical sense”, is erroneou and unjustified.

16. Mr. Burman has further argued that the amendment of S. 12(1) of the Foreign Exchange Regulation Act does not bring about any change in the existing law. It is his argument that S. 23A of the Foreign Exchange Regulation Act was there before amendment of S. 12(1) and is also there now; and the deeming provision under S. 23A of the Foreign Exchange Regulation Act has been the law all the time. Mr. Burman submits that even if under the deeming provision of S. 23A of the Foreign Exchange Regulation Act it be assumed that there has been a violation of S. 11 of the Customs Act S. 113 of the said Act is still not attracted, as the goods have already been exported; and as S. 113 is not attracted, S. 114 will also not be applicable, Mr. Burman, therefore, submits that the impugned notice under S. 114 of the Customs Act even on the basis of the allegations made in the said notice should be held to be without any jurisdiction and should be quashed.

17. Mr. Bose, learned advocate appearing on behalf of the Customs Authority, submitted that the decision of the learned trial Judge discharging the rule in the facts and circumstances of this case is correct. It is his submission that to make out a proper case for quashing the show cause notice the appellants have to proceed on the basis that the allegations made in the show cause notice are correct and have to establish that on the basis of the said allegations the authority concerned did not have any jurisdiction or power to issue the said notice and the notice, even on the assumption of the allegations contained therein being true and correct, is without jurisdiction and illegal. He has submitted that the correctness of the allegations made in the notice are to be considered in the adjudication proceeding and at this stage and in this proceeding the question of correctness of the allegations cannot be gone into. Mr. Bose argues that the allegations made in the notice clearly make out a case of violation of the restrictions or prohibition imposed under S. 12(1) of the Foreign Exchange Regulation Act. It is his argument that by virtue of the provisions contained in S. 23A of the said Act, the violation of the prohibition or restrictions under S. 12(1) of the Act will be deemed to be a violation of the prohibition or restriction under S. 11 of the Customs Act 1962 and all the provisions of the Customs Act shall have effect accordingly. Mr. Bose contends that violation of the restriction or prohibition imposed under S. 11 of the Customs Act, 1962 will in the facts and circumstances of the case, undoubtedly, attract the provisions contained in SS. 113 and 114 of the Customs Act, 1962. It is his contention that this position is made manifestly clear on a proper construction of Ss. 113 and 114. Mr. Bose argues that S. 113 provides for liability to confiscation of export goods and 113(d) provides that any goods attempted to be exported or brought within the limits of any customs area for the purpose of being exported contrary to any prohibition imposed by or under this Act or any other law for the time being in force shall be liable to confiscation; and S. 113(1) provides that any prohibited goods which are included or are in excess of those included in the entry made under this Act, or in the case of baggage in the declaration made under S. 77 shall also be liable to confiscation. It is Mr. Bose's contention that the allegations made in the show cause notice clearly establish that the goods had incurred the liability to confiscation as soon as the goods are attempted to be exported or are brought within the limits of any customs area for the purpose of being exported contrary to any prohibition imposed by or under this Act or any other law for the time being in force and once the goods become liable to confiscation, S. 113 on its plain reading becomes clearly applicable; and the question that it may not be possible to physically confiscate the goods for any reason whatsoever is not of any great consequence. Similarly, argues Mr. Bose, under S. 113(1) of the Customs Act any dutiable or prohibited goods which do not correspond in any material particular with the entry made under this Act or in case of baggage with the declaration made under S. 77 in respect thereof render themselves liable to confiscation under S. 113 irrespective of any question of the possibility of actual confiscation of the goods. It is the argument of Mr. Bose that S. 113 which is clear and unambiguous makes provision on a plain reading as to the circumstances under which the goods become liable to confiscation. Mr. Bose submits that the allegations made in the show cause notice clearly make out a case that the goods had incurred the liability to confiscation under S. 113(d) and (i) of the Customs Act. Mr. Bose argues that on a plain reading of S. 114 of the Customs Act, the said Section clearly provides that any person who in relation to any goods does or omits to do any act which act or omission renders such goods liable to confiscation under S. 113 or abets the doing or omission of such act, shall be liable to such penalty as stipulated in the said section. It is the argument of Mr. Bose that the goods had incurred liability to confiscation under S. 113(d) and (i) and the act of the incorrect declaration of the appellants in relation to the goods or their omission to furnish the true and correct declaration renders the goods liable to confiscation under S. 113; and the appellants, therefore, become liable under S. 114 on the plain language of the said section. Mr. Bose has submitted that the contention raised on behalf of the appellant that the Ss. 113 and 114 cannot have any application once the goods have been exported is not borne out on a true construction of the said Ss. 113 and 114. It is his submission that Ss. 113 and 114 have indeed nothing to do with actual export of the goods; and, as already noted, it is his argument that S. 113 lays down the conditions when goods incur liability to confiscation and S. 114 stipulates that any person whose act or omission in relation to the goods renders such goods liable to confiscation under S. 113, will be liable in the manner indicated in the said S. 114. He submits that this result clearly follows on a proper construction of the relevant provisions of the statute, applying the well settled principle of construing the said provisions with reference to the language used in the relevant sections. He contends that if it can be said that there is any ambiguity in the said provisions, the said provision should, in that event, be construed in a manner which will best serve the objects and purposes for which the said provisions have been introduced. It is his contention that both the Foreign Exchange Regulation Act and the Customs Act aim at preserving economic interest of the country and they are indeed socioeconomic legistations. He argues that the Legislature could never have intended that any person who attempts to export goods in violation of the prohibition or restriction imposed under S. 113 of the Customs Act will become liable under S. 114 of the Act but will escape all liabilities under S. 114, if by chance his illegal attempt to export the goods succeeds and the goods sought to be exported in violation of the prohibition or restriction imposed under S. 113 are in fact exported.

18. Mr. Bose has next submitted that the decisions of the Division Bench in the case of Jute Investment Company, 77 CWN 501, and also in the case of Thomas Duff and Co. (India) P. Ltd., 1976 Calcutta High Court Notes, 242, (also 80 CWN 309) are not of any material assistance in deciding the present case. He argues that the said two decisions had indeed rested on various other grounds and the question of liability when the goods have in fact been exported and the meaning of export goods had come up for consideration only incidentally in these two cases. He submits that if the views expressed by the said Division Benches on these two questions can be said to be decisions of the said two Division Benches, the decisions of the Division Benches on this aspect are not correct. He has commented that the decision of the Division Bench in the case of Jute Investment Co. Ltd. had really been based on the decision of the Supreme Court in the case of Union of India v. Rai Bahadur Shreeram Durga Prasad (P) Ltd., AIR 1970 SC 1597. It is his comment that because of the said decision of the Supreme Court in the case of Rai Bahadur Shreeram Durga Prasad (P) Ltd., which was also reiterated by the Supreme Court in the case of Beekar Gray & Co. v. Union of India referred in AIR 1971 SC 116, S. 12(1) of the Foreign Exchange Regulation Act came to be amended. He has drawn our attention to the decision of the Supreme Court in the case of South India Coir Mills, Poockakkal v. The Additional Collector of Customs & Central Exercise, AIR 1976 SC 1527, in which the effect of the amended provisions of S. 12(1) of the Foreign Exchange Regulation Act has been considered. He has pointed out that the decision of Sabyasachi Mukharji, J. in the case of United India Minerals Ltd. v. The Assistant Collector of Customs, 1971 Criminal Law Journal 1370 has been reversed by the Division Bench consisting of the Chief Justice Sankar Prasad Mitra, and Salil Kumar Datta, J. and the judgment of the Division Bench is reported in AIR 1976 Cal. 21 (also 79 CWN 900). It is his submission that the decision of the Division Bench in AIR 1976 Cal. 21 (79 CWN 900) correctly lays down the law. He has concluded his submissions by saying that in the instant case the learned trial Judge on a proper consideration of the facts and circumstances of the case and the changes brought about by the amendment of S. 12(1) of the Foreign Exchange Regulation Act, has correctly come to the conclusion that on the allegations made in the notice the said notice is justified and valid and the decision of the learned trial Judge should be upheld.

19. Before we proceed to deal with the respective contentions of the parties we shall briefly consider the cases cited from the Bar.

20. In the case of Union of India v. Rai Bahadur Sreeram Durga Prasad (P) Ltd. AIR 1970 SC 1597, the Supreme Court had to consider the question whether an untrue or incorrect statement contained in the declaration which was required to be made under S. 12(1) of the Foreign Exchange Regulation Act, 1947 prior to its amendment, amounted to a violation of the said section to attract S. 11 of the Customs Act by virtue of the provisions contained in S. 23A of the Foreign Exchange Regulation Act. By a majority, the Supreme Court decided that the mis-declaration did not offend S. 12(1) of the Foreign Exchange Regulation Act the deeming provision of S. 23A of the Act was, therefore, not applicable and S. 11 of the Customs Act was, therefore, not attracted and the show cause notice issued by the Customs authorities was therefore without jurisdiction. Sikri, J. who dissented, observed in his judgment at page 1604 — “I have to construe an Act which was enacted in the interest of the national economy. A deliberate large-scale contravention of its provisions would affect the interests of every man, woman and child in the country. Such an Act, I apprehend, should be construed so as to make it workable, it should, however, receive a fair construction, doing no violence to the language employed by the Legislature. It was said that if two constructions are possible the one that is in favour of the subject should be accepted. It is not necessary to pronounce on this proposition for I have come to the conclusion that there is one true construction of S. 12(1). But I should not be taken to be assenting to this proposition in so far as it is applicable to an enactment like the Exchange Act, for no subject has a right to sabotage the national economy.”

21. The Supreme Court was asked to reconsider its decision in the later case of Beekar Gray & Co. v. Union of India AIR 1971 SC 116 by referring it to a larger Bench. The Supreme Court, however, did not think it proper to do so and the Supreme Court reiterated the earlier view expressed by the majority in Rai Bahadur Shreeram Durga Prasad's case. Thereafter the Legislature thought it fit to intervene and S. 12(1) of the Foreign Exchange Regulation Act was amended. The provisions of S. 12(1) of the Foreign Exchange Regulation Act prior to its amendment and also after its amendment have earlier been noted.

22. In the case of South India Coir Mills Poochakkal v. The Additional Collector of Customs & Central Excercise, AIR 1976 SC 8527, the validity of an order of imposition of penalty and confiscation of goods with the direction of payment of Rs. 5000/- in lieu of confiscation of the goods was challenged and in this case the Supreme Court had to consider S. 12(1) of the Foreign Exchange Regulation Act after its amendment. The Supreme Court held that the Collector of Customs was justified in its order in imposing the penalty and in relation to the confiscation of goods; the Supreme Court, however, reduced the amount of penalty imposed. In the judgment of the Supreme Court the observation of Sikri, J. which we have earlier set out were quoted at page 1530.

23. The effect of the decision of the Supreme Court as we read it, appears to be that any untrue declaration in all material particulars will amount to a violation of S. 12(1) of the Foreign Exchange Regulation Act as amended and the infraction of S. 12(1) of the Foreign Exchange Regulation Act will, by virtue of the provisions contained in S. 23A of the said Act, result in contravention of the prohibition or restriction contained in S. 11 of the Customs Act.

24. In case of Jute Investment Co. Ltd. v. S.K Srivastava, 77 CWN 501, the validity of a notice issued by the Customs authorities to the company to show cause why penal action should not be taken against the company under S. 114 of the Customs Act 1962 for alleged contravention of S. 12(1) of the Foreign Exchange Regulation Act by not declaring that the amount representing the full export value would be or had been paid in the prescribed manner and my making incorrect declaration in the shipping bills, was challenged in a writ petition filed by the company under Article 226 of the Constitution. The learned trial Judge having discharged the rule the matter came up before the Division Bench, and the Division Bench reversed the judgment of the learned trial Judge and quashed the notice holding inter alia:—

(i) that S. 12(1) of the Foreign Exchange Regulation Act, 1947, before its amendment by Act 40 of 1969 did not prescribe any particular form in which a declaration as required by that section had to be furnished; such forms were prescribed by the Foreign Exchange Regulation Rules, 1952. The omission to furnish such a declaration in the prescribed form and giving of incorrect particulars in the declaration were not contraventions of S. 12(1) of the Foreign Exchange Regulation Act, 1947, and did not attract the jurisdiction of the Customs authorities under S. 113 or S. 114 of the Customs Act, 1962.

(ii) that goods which have already been exported pursuant to an order made under S. 51 of the Customs Act, 1962 cannot be deemed to be export goods as defined in S. 2(12) of the Customs Act, 1962.

(iii) that goods concerned not being dutiable or prohibited goods or exports goods, there could be no contravention of S. 113(1) of the Customs Act, 1962, on the ground that incorrect particulars of the goods had been given.

25. The Division Bench had relied on the decisions of the Supreme Court in the case of Union of India v. Rai Bahadur Shreeram Durga Prasad (P) Ltd. AIR 1970 SC 1957, and also in the case of Becker Gray & Co. v. Union of India AIR 1971 SC 116. The Division Bench observed at page 506—“Furthermore, it appears that goods are not export goods as defined under S. 2(19) of the Customs Act, 1962. Section 2(19) of the Customs Act, 1962 defines ‘export goods’ as goods which are to be taken out of India to a place outside India. The goods which had already been exported pursuant to orders made under S. 51 of the Customs Act, 1962, cannot therefore be deemed to be ‘export goods’ within the meaning of Customs Act, 1962.

26. In the case of Thomas Duff & Co. (India P. Ltd. v. Collector of Customs, 1976 Calcutta High Court Notes 242 (also reported in 80 CWN 305), a Division Bench of this Court set aside three notices issued by the Customs authorities to the company calling upon the company to show cause why penal action should not be taken against it under S. 114 of the Act for alleged misdeclaration of the value of the goods exported, on the writ petition filed by the company under Article 226 of the Constitution, reversing the judgment and decision of the trial Court, holding inter alia:— (i) As the goods had already been exported before the issue of the three impugned notices, the goods concerned cannot be ‘export goods’ in terms of S. 113 read with S. 2(19) of the Act, which means any goods which are to be taken out of India to a place outside India. As the goods had already been shipped, these were no longer goods which were to be taken ‘out of India.’

(2) Duty admittedly had already been paid on the goods under S. 2(14) of the Customa Act. ‘Dutiable goods’ means goods which are chargeable to duty and on which duty has not been paid. Section 2(15) states that duty means a duty of customs leviable under the Act. Under the circumstances, the goods do not seem to be liable to be confiscated under S. 113(i) which applied only to dutiable and prohibited goods. It is nobody's case that the goods are prohibited ones.

(3) There was no misdeclaration of goods to attract the provisions of S. 113(i) of the Act; a declaration of value for foreign exchange was not material for the purpose of Customs Act; the goods were not either dutiable or export goods and that by making a wrong decision as to jurisdictional fact the Customs authorities could not confer jurisdiction upon themselves. The Division Bench observed—“As the goods had already been exported before the issue of three impugned show cause notices the goods concerned cannot be ‘export goods’ in terms of S. 113 read with S. 2(19) of the Customs Act. According to the definition S. 2(19) ‘export goods’ means any goods which are to be taken out of India to a place outside India. As the goods had already been shipped there were no longer goods which were to be taken out of India.”

27. The other decision is the decision of the Division Bench in the case of the Assistant Collector of Customs, Special Section, Calcutta v. United Minerals Ltd., AIR 1976 Cal 21 (also reported in 79 CWN 900). In this decision the Division Bench set aside the judgment and order passed by the learned trial Judge quashing the notice issued by the Customs authorities to the company asking the company to show cause as to why penal action should not be taken against the company under S. 114 of Customs Act on a writ petition filed by the company under Article 226 of the Constitution and the Division Bench discharged the rule and dismissed the petition. When the present appeal came up for decision before the Division Bench this decision of the Division Bench was considered to be in conflict with the earlier decisions of the Division Benches and in view thereof this reference to the Full Bench has been made. In the case of United Minerals Ltd. the learned trial Judge following the earlier decisions had held that the Customs authorities had no jurisdiction to inflect personal penalty in a case where the goods had already been exported from the country. The Division Bench recorded the following reasons for holding that such a view is not correct:—

“Now, the proposition that the Customs Authorities have no jurisdiction to inflict personal penally in a case where the goods have already been exported from the county, does not appear to us to be tenable on the following grounds:—

(i) Under S. 114 it is the doing of or an omission to do any act which is relevant for the purpose of penalty and not the existence or non-existencr of the goods at the time the show cause notice is issued or the adjudication is made.

(ii) The offence contemplated in S. 114 is an offence which arises under S. 113 and which are the ingredients of S. 114.

(iii) Section 113 applies to export goods as defined in S. 2(19). An offence is committed under S. 113(d) before the export.

(iv) It is not the intention of the Act to pursue the goods after export. The Act contemplates punishment of the offender for the offence committed before the export. From this point of view the omission of actual exportation in the new Act is understandable. A liability to confiscation must be distinguished from physical possibility of confiscation. Goods already exported cannot be physically confiscated.

(v) If the offence is committed before the export, the actual export of the goods cannot wipe out the offence. According to the Act the offence under S. 113(d) can be committed only when the goods are within the country. This is an accord with the definition of “export goods” in S. 2(19). Therefore, if the offence of “attempt to export” is complete when the goods are within the country, subsequent exportation cannot put an end to that offence or make any difference to the personal liability of the exporter. The question, therefore, to be considered is whether the goods would be liable to confiscation for offence committed if the goods were within the country and had not been exported. Incidently in Appeal No. 29 of 1969 (I.J Rao v. Bibhuti Bhusan Bag), a Division Bench of this Court observed:

“Mr. Banerjee contended that even if the findings of Mr. Justice Ghose are correct his order quashing the entire proceedings against the respondent is wrong. He argued that for many of the offence under the Customs Act, the Customs Authorities can proceed against the goods as well as against the persons who have contravened Customs Laws. Thus the Customs Authorities often impose a penalty and at the same time order confiscation of the goods. In the present proceedings even if the detention of the goods by the Customs Authorities be found illegal and if the petitioners get an order for return of the goods to them, there is no reason why the entire proceedings should be quashed. The Customs Authorities still have jurisdiction to initiate proceedings against the petitioners and impose upon them personal liability by way of the fine. This contention of Mr. Banerji is quite correct.”

This view of the Division Bench was supported by another Division Bench of this Court in Appeal No. 122 of 1969 (Shaikh Mohammed Sayeed v. Assistant, Collector of Customs for Preventive (I).

(vi) The words ‘would render such goods liable to confiscation’ in S. 114 have been used in a notional or hypothetical sense. The expression ‘would render’ refers to the time when the goods are brought into the Customs area for export or an attempt is made to export. In this sense the words ‘would render liable’ do not seem to be inappropriate as exports of goods always include an attempt to export goods; whether the attempt is successful or unsuccessful makes, in our opinion, no difference.

(vii) Unless we construe S. 113(d) in this manner we shall land in absurdities. For instance, let us take a case in which goods are brought within the Customs area in an attempt to export iliegally and the exporter faced with the possibility of detection tries to escape with the goods and while he is escaping, the goods fall into the river or the sea. Can it be said that the exporter cannot be punished for attempt to export? Obviously answer is in the negative.”

28. It is quite clear that violation or any prohibition or restriction imposed under S. 12 of the Foreign Exchange Regulation Act 1947 will result in a violation of the prohibition or restriction under S. 11 of the Customs Act 1962 by virtue of the deeming provisions contained in S. 23A of the Foreign Exchange Regulation Act, and necessarily, all the provisions of the Customs Act which may be attracted because of violation of S. 11 of the Customs Act will have effect. The question is whether the violation of the prohibition or restriction imposed under S. 11 of the Customs Act will attract the provisions of S. 113 and 114 of the Act in a case where goods had already been exported. The answer to the question will depend on proper construction of the relevant provisions of the Customs Act and of the provisions contained in S. 113 in particular. Section 113 lays down conditions when ‘export goods’ become liable to confiscation. It makes provisions as to under what circumstances ‘export goods’ incur the liability to confiscation. Section 113 does not deal with actual confiscation of the goods or the physical possibility of confiscation thereof. It only provides that export goods shall be liable to confiscation, if any of the conditions stipulated in S. 113 are satisfied. In other words, it makes provisions as to the incurring of liability to confiscation of the ‘export goods’. Section 113(d) makes it clear that ‘export goods’, shall incur the liability to confiscation if the goods are attempted to be exported contrary to any prohibition imposed by or under the Customs Act or any other law for the time being in force. ‘Export goods’ as defined in S. 2(19) of the Customs Act means ‘any goods which are to be taken out of India to a place outside India’. Any goods which are to be taken out of India to a place outside India will incur the liability to confiscation under S. 113(d), if the said goods are attempted to be exported contrary to any prohibition imposed by or under the Customs Act or any other law for the time being in force. The liability to confiscation arises and is incurred as soon as the export goods are attempted to be exported contrary to any such prohibition and attempt to export the goods must necessarily precede the actual exportation of the goods. The liability of the goods to confiscation, therefore, arises as soon as the said goods are attempted or sought to be exported contrary to such prohibition. This liability which accrues or arises as soon as the attempt to export the goods is made is in no way dependent and has not been made dependent on the possibility or feasibility of actual confiscation of the goods. This accured liability of the goods to confiscation clearly attracts S. 114 of the Customs Act which provides that any person who in relation to any goods, does or omits to do any act, which act or omission would render such goods liable to confiscation under S. 113 or abets the doing or omission of such an act, shall be liable to penalty as provided in the said Section. With the incurring of liability of the goods to confiscation under S. 113, any person who in relation to such goods has done or omitted to do any act which act or omission has rendered such goods liable to confiscation under S. 113 or abets the doing or omission of such an act, renders himself liable to penalty under S. 114. On a proper construction of S. 113 and 114 of the Customs Act with reference to the language used in the said Section this position, in our opinion, clearly emerges. We fail to appreciate how the accured liability of the goods to confiscation with the attempt made for exporting the same contrary to prohibition is extinguished or wiped out with the said illegal attempt succeeding, resulting in the actual exportation of the goods. A plain reading of S. 113 of the Customs Act providing for liability to confiscation of export goods and of S. 2(19) of the Act defining ‘export goods’ does not appear to indicate or suggest that the accrued liability to confiscation is so extinguished or wiped out. It may be noticed that this liability to confiscation attaches to the goods at the time the goods are sought to be exported contrary to prohibition and at that point of time the goods which are to be taken out of India to a place outside India have not been taken out of Indiy to a place outside India. In other words, at the point of time when the liability to confiscation accures, the goods are ‘export goods’ well within the meaning of the definition of export goods in S. 2(19) of the Act.

29. In our opinion, this appears to be the proper interpretation of S. 113 and 114 of the Customs Act, applying the well settled principles of construing the said Sections with reference to the language used therein. This interpretation further appears to be in accord with the objects for which this particular legislation has been enacted by the Parliament.

30. We have earlier set out the provisions of S. 11 of the Customs Act which confers power on the Central Government to prohibit importation or exportation of goods for purposes mentioned therein. These purposes indeed cover very wide fields. Some of the purposes for which the prohibition may be imposed as stated in S. 11(2) are, prevention of smuggling, prevention of shortage of goods of any description and prevention of the contravention of any law for the time being in force. Section 113 provides for liability of the goods to confiscation in case of any violation of the prohibition imposed under S. 11 of the Act and S. 114 provides for personal penalty for those whose acts or omissions render the goods liable to confiscation under S. 113. To construe the said sections to mean that S. 114 can only be attracted when the goods are attempted to be exported and will have no application when goods have in fact been exported will defeat the purpose and object for which the said provisions have been introduced. The submissions that the legislature has so intended by using the words ‘attempt to export’ in S. 113(a), (b) and (d) and the analogy of the offence of attempt to commit suicide given in this connection are, in our opinion, misleading and devoid of merit. An attempt to commit suicide is indeed an offense and the act of committing suicide resulting from the successful attempt may not be considered to be an offence. This is so for the simple reason that once a person attempting to commit suicide succeeds in his attempt he places himself beyond the reach of law and no punishment is intended to be inflicted on the dead person or his heirs and legal representatives by imposing any fine or penalty, as they may in no way be liable or responsible for the said act. As we have earlier observed the liability of the goods to confiscation arises under S. 113(d), as soon as the goods are attempted to be exported and the attempt to export the goods necessarily precedes the actual export of the goods. Goods become liable to confiscation as soon as the attempt is made. There is no provision in the Act to suggest that this accrued liability is wiped out or extinguished with the exportation of the goods. It may be that after the goods had in tact been exported the liability of the goods to be confiscated may not be enforceable by actual confiscation of the goods. Personal penalty of any person who, in relation to the goods, does or omits to do any act or omission renders the goods liable to confiscation under S. 113 or abets the doing or omission of such an act has been provided in S. 114. This provision is attracted as soon as the goods incur the liability to confiscation under S. 113 and such liability, as we have earlier held, arises when the goods are attempted to be exported contrary to any prohibition. It is to be noted that at the time when the goods are sought to be exported they are undoubtedly ‘export goods’ within the meaning of S. 2(19) of the Customs Act. The liability of personal penalty provided in S. 114 of the Act, which arises with the accrual of the liability of the goods to confiscation under S. 113 of the Act at the stage of the attempt to export the said goods, clearly remains and the said liability is capable of reforcement. In the case of illegal export of any goods contrary to prohibition the effect may be that the liability of the goods to confiscation which arises and accrues may not be capable of enforcement but the personal liability which arises with the accrual of liability of the goods to confiscation can be enforced and by enforcement of the personal liability the offender can still be brought to book and this kind of offence may be checked. We must, therefore hold that by virtue of S. 23A of the Foreign Exchange Regulation Act 1947 the provisions of S. 113 and 114 of the Customs Act 1962 are attracted, when there is a contravention of S. 12(1) of the Foreign Exchange Regulation Act 1947 in relation to goods which had in fact been exported. This was indeed the first question which came up for consideration before the Division Bench and has been referred to the Full Bench and our answer to this question is therefore in the affirmative.

31. An order by the proper officer permitting clearance and loading of the goods under S. 51 of the Customs Act does not affect the position.

32. We have earlier noticed that under S. 113 of the Customs Act export goods incur the liability to confiscation at the stage when they are attempted to be exported.

33. The attempt to export necessarily preceds actual export. At the time of attempting to export the goods contrary to prohibition, the liability of the goods to confiscation arises and at that point of time when the liability to confiscation arises, the goods are ‘goods which are to be taken out of India to a place outside India’ and are, undoubtedly, ‘export goods’ within the meaning thereof as defined in S. 2(19) of the Act. Actual export of the goods, as a result of the attempt succeeding subsequent to the stage of the attempt, is not indeed of any material consequence. The goods are ‘export goods’ as defined in S. 2(19) of the Customs Act 1962 at the time the goods incur the liability to confiscation under S. 113 of the said Act. We accordingly answer the second question which came up for consideration before the Division Bench and which has been referred to the Full Bench in the manner indicated above.

34. The decisions of the Supreme Court in the cases of Rai Bahadur Shreeram Durgaprasad (P) Ltd. & Becker Gray & Co., noted earlier, are not of any material assistance in the instant case, as in the said two decisions it was held that the misdeclaration did not result in violation of S. 12(1) of the Foreign Exchange Regulation Act prior to its amendment; and, therefore, there was no question of any violation of S. 11 of the Customs Act by virtue of the provisions contained in S. 23A of the Foreign Exchange Regulation Act. It is not in dispute now that an incorrect declaration violates S. 12(1) of the Foreign Exchange Regulation Act as it stands after the amendment.

35. In the instant case the allegations made in the notice to show cause make out a case of violation of S. 12(1) of the Foreign Exchange Regulation Act. At this stage we are not indeed concerned with the correctness or otherwise of the allegations which will have to be determined in the adjudication proceeding. Suffice it to say for the present that the allegations make a case of violation of S. 12(1) of the Foreign Exchange Regulation Act. By virtue of the provisions contained in S. 23A of the Foreign Exchange Regulation Act, S. 11 of the Customs Act is, therefore, attracted and all the provisions of the Customs Act which become applicable to any violation of any restriction or prohibition under S. 11 of the Customs Act take effect. Section 113(d) and (i) on the basis of the infringement complained of become applicable and S. 114 is also thereby attracted.

36. Notice under S. 124 of the Customs Act must necessarily be given in respect of acts already done and can never be in respect of any act to be done in future. At the time when the notice is issued the act complined of must necessarily have been completed. The relevant time for considering whether Ss. 113 and 114 are applicable is not the time when the notice is issued. The material time is when the offence is alleged to have been commited.

37. We are, therefore, of the opinion that in the instant case on the basis of the allegations made in the notice it cannot be said that SS. 113 and 114 of the Customs Act are not attracted and the notice is without jurisdiction. In the result the appeal must fail and we dismiss the appeal.

38. As it appears that there was some confusion in the legal position and there appears to be conflicting decisions on the questions raised we consider it proper to make no order as to costs.

39. We wish to observe that it is neither desirable nor proper for this Bench to make any pronouncement on the correctness or otherwise of the actual decisions of the Division Bench in the case of Jute Investment Co. Ltd. 77 CWN 501 and in the case of Thomas Duff Co. (India) P. Ltd. 1976 Calcutta High Court Notes 242 (also 80 CWN 505). As rightly pointed out, the said decisions had rested on a number of grounds. The views expressed by the Division Benches in the said two cases on the questions referred to this Bench, must, however, be overruled to the extent that the views expressed therein are contrary to or inconsistent with the views expressed by us on these questions.

40. On these questions the views expressed by the Division Bench in the case of Assistant Collector of Customs Specinl Section, Calcutta v. United Minerals Ltd. AIR 1976 Cal. 21 (also reported in 79 CWN 900) meet with our approval in so far as the said views are in accord with the views expressed by us.

S.C Ghose, J.:—I agree.

Amiya Kumar Mukherji, J.:—I agree.

Reference answered; appeal dismissed.

M/S. Euresian Equipments And Chemicals Ltd. & Ors. v. The Collector Of Customs & Ors.

Summary of Full Bench Opinion (Calcutta High Court) — Key Findings and Reasoning

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments (as recorded for Mr. Burman)

Respondent's Arguments (as recorded for Mr. Bose / Customs Authority)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

M/S. Euresian Equipments And Chemicals Ltd. & Ors. v. The Collector Of Customs & Ors.

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