JUDGMENT
Sarwar Ali, J.
1. In this writ application the petitioner prays that the order of the Collector of Central Excise ordering confiscation of coins numbering 14031 to the Government of India under Section 111 (d) of the Customs Act, 1962 and the orders of the appellate and revi-sional authorities (copies whereof are Annexures 4, 6 and 7 respectively) be called up and quashed by issue of a writ in the nature of certiorari.
2. On 22-12-1963 the Deputy Superintendent of Central Excise, Raxaul, accompanied by other officers of the Department visited the premises of the petitioner at Raxaul and recovered from the said premises 14031 one rupee Nepa-lese coin, and a large number of other coins of smaller denomination. All these were seized by the Deputy Superintendent on the ground that they were illegally imported into India from Nepal, thereby violating the provisions of Section 8 of Foreign Exchange Regulation Act, 1947 read with Section 11 of the Customs Act. 1962. A report was made by the Deputy Superintendent on the basis of which a notice was issued to the petitioner calling upon him to show cause as to why action should not be taken against him and why the coins illegally imported by him be not confiscated. Cause was shown by the petitioner. After giving
an opportunity to show cause, as aforesaid, the Collector Central Excise. Patna, passed orders confiscating the said coins numbering 14031 under Section 111 (d) of Customs Act, 1962. A number of other coins of smaller denomination were ordered to be released. There was an appeal by the petitioner to the Central Board of Excise and Customs which was dismissed by order dated 5-4-1968. A copy of the said order is Annexure 6. Thereafter the petitioner went up in revision. The revision was also dismissed by an order dated 11-5-1970. A copy of the same is Annexure 7.
3. The case of the petitioner is that he carries on business in Nepal at Kathmandu and Narayanghat and has his principal business office at Raxaul in the State of Bihar. The seized coins were brought into India at intervals in usual course of business and were to be taken back to Birganj in Nepal for being exchanged to Indian currency from Nepal Rastra Bank, Birganj, His further case, as made out before the Collector of Central Excise and Customs, is that the coins in question did not contain silver but were only silver plated. The petitioner further claims that he has not violated the provisions of any law and was thus not liable either to be prosecuted or to incur the liability of having the coins confiscated.
4. The case of the department as disclosed in the order of the Collector is that on 22-12-1963 Central Excise Officers raided the premises of the petitioner. In the residential portion they found Nepalese coins being counted in the presence of the petitioner. There they found in number 665 one rupee Nepalese coins and 13265, eight annas Nepalese coins. They also found in an adjacent room 11 bags of Nepalese coins which were kept hidden under heaps of bricks. The total number of Nepalese coins thus recovered included 14031 Nepalese coins of one rupee denomination. According to the department, in view of the notifications issued under Section 8 of the Foreign Exchange Regulation Act. 1947 no person could import from Nepal more than Rs. 20/- silver coins current therein, at a time. The petitioner having imported silver coins current in Nepal beyond permissible limit had violated the provisions of Section 11 of the Customs Act, 1962 read with Section 8 of the Foreign Exchange Regulation Act. 1947,
5. In the preliminary investigation, the petitioner furnished 3 one rupee coins and 1 eight annas coin for being tested in order to find out the contents of silver in the said coins. The Superintendent of Motihari was asked to determine the silver contents in the coins actually
seized. The test indicated that one rupee coin contained 33.3 per cent by weight and 128.3 per cent by value of silver. Half rupee coin contained very small percentage of silver being only 2.6 per cent.
6. Three contentions were raised before the Collector of Central Excise. They are noticed in paragraph 4 of the order (Annexue 4). The Collector found that the case of the petitioner that the coins were brought in India with a view to ultimate exchange of the same later at Nepal Rastra Bank has not been substantiated. He also found that the coins were silver coins, and not only silver plated as was the contention of the petitioner. It was further held that there has been violation of the provisions of law as mentioned in the show cause notice served on the petitioner. These findings have been upheld both by the appellate and revisional authorities,
7. The, first contention of the petitioner is that there was no prohibition to the import of silver coins current in Nepal at the relevant time. According to the contention of the learned counsel for the petitioner the notification issued under Section 8 of the Foreign Exchange Regulation Act was not applicable as the said notification could not be deemed to be a notification under Section 11 of the Customs Act, 1962 and as such there could not be an order of confiscation under Section 111 (d) of the said Act. as the alleged importation was not contrary to any prohibition imposed by order under the Act. In order to appreciate this argument it is necessary to refer to some of the provisions of the various Acts. Section 8 of the Foreign Exchange Regulation Act authorises the Central Government by notification in the official gazette to restrict the importation, subject to such exemptions, if any of coins whether Indian or foreign. In pursuance of the powers under this section notification being notification No 401(12)(2)-EF-VII(51) dated 24-3-1951 was issued. This notification is as follows :–
“(No. 3(13-B)-EFVII/51)
New Delhi, the 24th March. 1951
S.R.O. 401– In exercise of the powers conferred by Sub-section (1) of Section 8 of the Foreign Exchange Regulation Act, 1947 (VII of 1947). the Central Government herebv directs that except with the general or special permission of the Reserve Bank, no person shall bring or send into the States from any place in Nepal any silver (sic) coin which is current in Nepal.
(No. 12(20)-EFVII/51)
G. R. Kamat. Joint Secy.”
Later the notification, a copy of which is Annexure 2. was issued. By this noti-
fication Reserve Bank of India permitted the importation of silver coins current in Nepal up to the value of Nepalese Rs. 20/- at any one time. Section 23-A of the Foreign Exchange Regulation Act as at the relevant time was as follows : "Without prejudice to the provisions of Section 23 of the Foreign Exchange Regulation Act or to any other provision contained in this Act the restrictions imposed by Sub-sections (1) and (2) of Section 8 shall be deemed to be imposed under Section 19 of the Sea Customs Act 1878....." The effect of the provision is that violation of any restriction placed under this Act becomes violation of the provisions of Section 19 of the Sea Customs Act Section 19 of the Sea Customs Act was as follows : "Power to prohibit or restrict importation or exportation of goods. The Central Government may from time to time, by notification in Official Gazette prohibit or restrict the bringing or taking by sea or by land goods of any specified description into or out of India across any customs frontier as defined by the Central Government."
Thus the notification issued under Section 8 of the Foreign Exchange Regula-tion Act read with Section 23-A of the. said Act and Section 19 of the Sea Customs Act has the effect of prohibiting importation in India at a time of Nepalese silver coin of more than Rs. 20/-in value. The learned counsel, however, contended that since the Sea Customs Act was repealed under the Customs Act. 1962. it cannot be said that there was any violation of the Customs Act by bringing into India Nepalese silver coins in question. The answer to this contention is provided by Section 160 of the Customs Act, 1962. Sub-clause (3) (a) whereof is as follows :
“(3) Notwithstanding the repeal of any enactment by this section;
any notification, rule, order or notice issued or any appointment or declaration made or any licence, permission or exemption granted or any assessment made, confiscation adjudged or any duty levied or any penalty or a fine imposed or any forfeiture, cancellation or discharge to any bond ordered or any other thing done or any other action taken under any repealed enactment shall, so far as it is not inconsistent with the provisions of Act, be deemed to have been donp or taken under the corresponding provision of this Act.”
The effect of this provision is that any notification issued or deemed to have been issued under the Sea Customs Act laying down any prohibition or granting any exemption therein will be deemed
to be under the Customs Act. 1962. provided there is a corresponding provision in the Customs Act to the provision in the Sea Customs Act. Faced with this situation learned counsel for the petitioner contended that Section 19 of the Sea Customs Act cannot be said to have a corresponding provision in the Customs Act. Section 11 of the Customs Act which, in my view, is a corresponding provision, was contended to be not so by the learned counsel for the petitioner. The reason advanced by him was that whereas power to prohibit or restrict importation or exportation of goods under Section 19 of Sea Customs Act was unrestricted, the power under Section 11 of Customs Act could only be exercised for one of the purposes mentioned in Section 11 (2). First, it will not be correct to say that the powers under Section 19 of Sea Customs Act are unrestricted and unguided. The powers, in my view, can only be exercised to further and advance the object of the legislation. Moreover, the purposes specified in Sub-Section (2) of Section 11 of Customs Act are wider in scope than the corresponding provision of Section 19 of Sea Customs Act. The last purpose mentioned in the said sub-section is “any other purposes conducive to the interest of the general public.” This alone, in my view, will be sufficient to cover the purposes for which action under Section 19 of the Sea Customs Act could be taken. It is thus clear that the corresponding provision to Section 19 of the Sea Customs Act is Section 11 of the Customs Act. Consequently. therefore, the saving provision of Section 160 of the Customs Act has the effect of making the restriction imposed under notification issued under the Foreign Exchange Regulation Act restrictions to which Section 11 of the Customs Act applies.
8. There is yet another answer to the contention of the petitioner in this context. Section 111 (d) of the Customs Act authorises confiscation, not only if there is contravention of prohibition imposed by or under the Act, but also where there is contravention of prohibition under any other law for the time being ins force. It is clear, therefore, that even where there is no violation of Customs Act. 1962 but there is violation of Foreign Exchange Regulation Act, 1947 orders under Section 111 (d) of the Act can be passed in accordance with law.
9. The next contention raised on behalf of the petitioner is that the coins in question were not silver coins current in Nepal. The learned counsel referred to a publication said to contain legislations of Nepal, called Nepal Mudra Act
which was in three volumes. Learned Counsel referred to certain provisions from one of the Statutes, which clearly indicated that several kinds of coins including silver coins are current in Nepal. One of the provisions referred by the learned counsel was to the effect that where there was loss in gross weight of silver coins to the extent of more than two per cent the coins will not be deemed to be a legal tender. The learned counsel pointed out the corresponding
provision in the Indian Coinage Act (before amendments of 1947) which is in similar terms. I, however, do not think that this provision can improve petitioner’s case. It is clear that silyer coins were legal tenders and current in Nepal at the relevant time. The only controversy between the department and the petitioner was whether the coins were silver coins current in Nepal or silver
plated. The Tribunals of facts have held that they were sliver coins current in Nepal as the coins in question contained 33.3 per cent of silver and these findings cannot be upset in a writ case. The learned counsel for the petitioner tried to contend that the coins cannot be deemed to be silver coins unless the contents of silver was 50 per cent or more. In that connection he referred to Section 4 of the Indian Coinage Act. This provision as originally enacted contemplated 11/12th of silver in a silver coin. What, however, the learned counsel failed to notice was that the Central Government has been empowered to fix a reduced percentage. (See Section 21 (2) (a)). In any event the contents of silver in silver coins in India is not of any consequences. The learned counsel was not able to place any materials at the time of hearing of the writ application in support of his aforesaid contention. On conclusion of the hearing of this case the learned counsel for the petitioner suggested that judgment should not be delivered tor a few days, so that he may be able to obtain, if possible, certificate showing the percentage of silver in silver coins current in Nepal or bring to our notice some legislation, if there was such a legislation, on the subject. Although hearing was concluded on the 28th of November. 1972 we deferred the delivery of judgment for more than three weeks but neither any supplementary affidavit has been filed nor any other material has been produced by the learned counsel for the petitioner.
10. The learned counsel contended that the coins in question were brought in India with a view to ultimate exchange of the same at Nepal Rashtra Bank. This contention was raised before the Collector also who for the reasons given in his order, has negatived this
contention. There is no error of law in the conclusion of the Collector in that regard.
11. Lastly, it was contended that the department had failed to prove that the coins had been imported more than 20 rupees at a time. This contention was not raised before any of the authorities whose order is under challenge. It cannot therefore be permitted to be agitated for the first time in this writ application. Moreover if the petitioner relied on the exemption that has been given under the notification (Annexure 2) it was for him to plead and prove the facts, which were in his special knowledge. Such being the position the last contention of the petitioner also cannot be accepted.
12. I thus do not find any merit In the contentions raised in the course of argument- This writ application is accordingly dismissed with costs. Hearing fee Rs. 100/-.
K. B. N. Singh, J.
13. I agree.
