{"id":92851,"date":"1976-03-25T00:00:00","date_gmt":"1976-03-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/south-india-coir-mills-poochakkal-vs-the-additional-collector-of-on-25-march-1976"},"modified":"2016-06-14T06:09:50","modified_gmt":"2016-06-14T00:39:50","slug":"south-india-coir-mills-poochakkal-vs-the-additional-collector-of-on-25-march-1976","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/south-india-coir-mills-poochakkal-vs-the-additional-collector-of-on-25-march-1976","title":{"rendered":"South India Coir Mills Poochakkal vs The Additional Collector Of … on 25 March, 1976"},"content":{"rendered":"
Supreme Court of India<\/div>\n
South India Coir Mills Poochakkal vs The Additional Collector Of … on 25 March, 1976<\/div>\n
Equivalent citations: 1976 AIR 1527, \t\t 1976 SCR (3) 905<\/div>\n
Author: N Untwalia<\/div>\n
Bench: Untwalia, N.L.<\/div>\n
           PETITIONER:\nSOUTH INDIA COIR MILLS POOCHAKKAL\n\n\tVs.\n\nRESPONDENT:\nTHE ADDITIONAL COLLECTOR OF CUSTOMS AND CENTRAL EXCISE ANDAN\n\nDATE OF JUDGMENT25\/03\/1976\n\nBENCH:\nUNTWALIA, N.L.\nBENCH:\nUNTWALIA, N.L.\nCHANDRACHUD, Y.V.\nKRISHNAIYER, V.R.\n\nCITATION:\n 1976 AIR 1527\t\t  1976 SCR  (3) 905\n 1976 SCC  (3) 354\n\n\nACT:\n     Foreign Exchange  Regulation Act  (7 of 1947), s. 12(1)\nas amended by Act 40 of 1969-Scope of.\n\n\n\nHEADNOTE:\n     The appellant is a dealer and exporter in coir yarn. On\nits behalf  a shipp ing bill for export of 150 bales of coir\nyarn to\t a port\t in Italy  was filed,  but the consignee was\nshown to  be a\tfirm of Yugoslavia. The invoice and the form\nof  declaration\t  prescribed  under   the  Foreign  Exchange\nRegulation Act.\t 1947, were  drawn up  by the  appellant  on\nrupee terms  in accordance  with  the\t contract  with\t the\nYugoslav firm.\tThe Collector  of Customs,  after issuing  a\nshow cause  notice to  the  appellant  and  considering\t the\nexplanation of\tthe appellant,\theld that  the appellant had\nmisdeclared   the   material   particulars   regarding\t the\nprescribed  manner   of\t payment,   and\t that  there  was  a\ncontravention of  s. 12(1),  Foreign Exchange Regulation Act\nread with s. 11 Customs Act, and ordered the confiscation of\nthe goods under s. 113 and imposed a penalty of Rs. 25.000\/-\nunder s. 114, Customs Act. The High Court upheld the  order.\n     Dismissing the appeal to this Court,\n^\n     HELD: In  the circumstances of the case, the quantum of\npenalty is reduced to Rs. 15,000\/-.[912 F]\n     (1) By  virtue of\ts. 23A,\t Foreign Exchange Regulation\nAct the\t prohibition imposed  under  s.\t 12(1)\tof  the\t Act\nbecomes a  prohibition imposed\tunder s.  11,  Customs\tAct.\nSection 11,  Customs Act, empowers the Central Government to\nprohibit the export of goods absolutely or conditionally and\ns. 113,\t Customs Act,  provides for  confiscation  of  goods\nexported contrary to any prohibition imposed, and the person\nattempting to export is liable to penalty under s. 114. [908\nD, F-G]\n     (2) Section  12(1), Foreign Exchange Regulation Act, as\namended by Act 40 of 1969, consists of 3 parts: (a) Issuance\nof a  notification by the Central Government prohibiting the\nexport of  certain goods  to  any  place  specified  in\t the\nnotification. (b)  The prohibition  is relaxed and export is\npermitted when\tthe exporter  furnishes a declaration in the\nprescribed  form   which  must\t be  true  in  all  material\nparticulars  including\tthe  amount  representing  the\tfull\nexport value  of the goods or the expected exported value of\nthe  goods.   (c)  Apart  from\tfurnishing  the\t declaration\ncontaining the\ttrue statements in all material particulars,\nthe  exporter  is  also\t required  to  affirm  in  the\tsaid\ndeclaration, that  is, in  the document\t or paper containing\nthe declaration,  that the  full export\t value of  the goods\nwill, within the prescribed period be paid in the prescribed\nmanner. This  affirmation is  not  required  to\t be  in\t any\nprescribed form.  Until and  unless the exporter so affirms,\nhe cannot,  in\tthe  interests\tof  conserving\tthe  foreign\nexchange, be allowed to export the goods. [910 B-D]\n     (3) In  the present  case there was no affirmation that\nthe full  export value of the goods has been or will, within\nthe prescribed\tperiod, be  paid in  the prescribed  manner,\nand, the absence of the affirmation is tantamount to failure\non the part of the appellant to comply with the requirements\nof law\tengrafted in  s. 12(1),\t Foreign Exchange Regulation\nAct. [912 D]\n     (a) The declaration of the buyer's name as the Yugoslav\nfirm was  found to  be wrong,  but that\t did not attract the\nprovisions of s. 12(1), because, in the prescribed form, the\nbuyer's name was not to be inserted. [910 G-H]\n906\n     (b) The  High Court  was wrong  in holding that because\nthe mode of payment mentioned in the declaration is contrary\nto r.  7 of  the Foreign  Exchange Rules,  1952. there was a\nmisdeclaration of  material particulars.  The appellant\t has\nmanaged to  get the  payment in\t Indian rupees\tthrough\t the\nYugoslav firm.\tTherefore, even after the statement that the\ncountry of  destination was  Italy, the\t statement that\t the\npayment was to be received in India in Indian rupees was not\nunture, although  it was  contrary to the mode prescribed in\nr. 7.  But the\tabsence of  the affirmation  is significant.\n[911 E-G; 912 B]\n     (c) Rule  7 provides  that the  amount representing the\nfull value  of the goods exported to the countries specified\nin the\t2nd schedule  shall be\tpaid through  an  authorised\ndealer and  unless authorised  by the Reserve Bank, shall be\npaid in\t the manner  specified in the schedule. The approved\nmethods of payment in the case of Italy, which is in Group A\nof the\tschedule, are  : (i)  currency of any country in the\nsub-group; (ii)\t sterling  from\t an  'External\tAccount'  as\ndefined under  the U.K.\t Exchange Control  Regulations;\t and\n(iii) Rupees  from the\taccounts of a bank in any country in\nthe Convertible Account group. [911 G-912 A]\n     (d) The appellant could not have affirmed that the full\nexport value  of the  goods would  be paid  in\tone  of\t the\nprescribed modes. If such affirmation was made it would have\nbeen false  because of the statement in the declaration that\nthe value of the goods was to be received in India in Indian\nrupees. If  in the affirmation the appellant had stated that\nfor the\t value of  the goods  exported to  Italy it  was  to\nreceive payment in Indian rupees, then the affirmation would\nhave violated  s.  12(1)  as  it  would\t not  have  been  an\naffirmation stating  that the  export value would be paid in\nthe prescribed manner. Hence, the decision of the High Court\nthat  the   appellant  had  attempted  to  export  goods  in\nviolation of  s. 12(1)\tis correct, though it is upheld on a\ndifferent basis. [912 B-E]\n     (4) Though it is an economic offence and relates to the\nlaw of\tforeign exchange  since the law was not clear either\nto the\tCustoms\t authorities  or  the  High  Court  and\t has\nresulted in  the recording  of finding against the appellant\non a  wrong basis,  although not  affecting the substance of\nthe view  that the  appellant violated s. 12(1), the quantum\nof penalty is reduced.[912 F-G]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 244 of
\n1976.\n<\/p>\n
     Appeal by\tSpecial Leave  from the\t Judgment and  Order
\ndated 9-10-74  of the  Kerala High Court in W. A. No. 142 of
\n1972.\n<\/p>\n
     M. N.  Phadke, S.\tK. Mehta,  K. R.  Nagaraja and P. N.
\nPuri, for the Appellant.\n<\/p>\n
     G. L. Sanghi and Girish Chandra, for Respondent No. 1.
\n     D. N. Misra, for Respondent No. 2.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     UNTWALIA,\tJ.-In\tthis  appeal  by  special  leave  an
\nimportant question  of law  falls for  our determination. It
\nconcerns the  interpretation of section 12(1) of the Foreign
\nExchange Regulation  Act, 1947,\t Central Act 7 of 1947 as it
\nstood amended at the relevant time by Act 40 of 1969.\n<\/p>\n
     The appellant  is\ta  firm,  one  of  the\tpartners  or
\nproprietors of which is Shri T. K. Seethy. It is a dealer in
\nCoir Yarn  and exports\tthe said commodity to foreign buyers
\nalso. On  March 24, 1971 a shipping bill was filed on behalf
\nof the appellant for the export of 150 bales of Coir Yarn to
\nTrieste a  port in  Italay.  The  consignee’s  name  in\t the
\nshipping  bill\t was  shown  as\t M\/s  Ferolektro,  Sarajavo,
\nYugoslavia.  Indisputably   the\t  Central   Government\t had
\npublished a notification in
\n907<\/span>
\nthe official  gazette under  section 12(1)  of\tthe  Foreign
\nExchange Regulation  Act prohibiting the export of coir yarn
\nfrom India  to certain\tplaces specified in the notification
\nincluding Italy\t unless certain\t conditions were  fulfilled.
\nThe exporter  was, therefore,  required to  comply with\t the
\nrequirement  of\t the  said  provision  of  law\tand  file  a
\ndeclaration in\tthe prescribed form. The relevant prescribed
\nfrom  in   the\tForeign\t Exchange  Regulation  Rules,  1952-
\nhereinafter referred to as the Rules-framed under section 27
\nof the\tAct of 1947 was Form G.R.I. The Invoice and G. R. I.
\nForm were  drawn up  by the  appellant\ton  rupee  terms  in
\naccordance with the contract dated 1.3.1971 which it claimed
\nto have\t had with  M\/s Ferolektro, Sarajavo, Yugoslavia. The
\nCustoms Authority  found that the goods were attempted to be
\nexported to  Italy while payment, according to the form, was
\nto be  received in  rupees. So\tthe appellant  was asked  to
\nexplain the  discrepancy in  the declaration.  A request was
\nmade on\t behalf of  the appellant  to amend  the Invoice and
\nG.R.I. showing payment in Sterling. It was not allowed to do
\nso. On April 20, 1971 the premises of the appellant firm and
\nthe house  of its  owner were  simultaneously  searched\t and
\ncertain documents  including some  letters exchanged between
\nthe appellant  and some\t foreign firms of Italy were seized.
\nIt appeared  to the  Assistant Collector of Customs, Customs
\nHouse, Cochin  that the\t goods in question were being bought
\nby M\/s\tTobia Giacomini,  Italy while the buyer shown in the
\nshipping document  was M\/s Ferolektro, Sarajavo, Yugoslavia.
\nSuch a discrepancy in the bill was against the provisions of
\nsection 50  of the Customs Act, 1962-Central Act 52 of 1962.
\nThe  Assistant\t Collector  further   found  that   in\t the
\ndeclaration furnished  by the  appellant in  accordance with
\nsection 12(1)  of the  Foreign Exchange\t Regulation Act\t the
\nmanner of  payment for\tthe goods  sought to be exported was
\ncontrary to  Rule 7  of the  Rules.  The  misdeclaration  or
\nuntrue declaration  made by  the appellant  in the  shipping
\nbill and  G.R.I. Form  was prima  facie not true in material
\nparticulars and\t  violated  section  12(1)  of\tthe  Foreign
\nExchange Regulation  Act. In view of the 11th section in the
\nCustoms Act, the violation attracted the confiscation of the
\ngoods under  section 113 (d) and imposition of penalty under
\nsection 114  of the  said Act.\tA showcause notice dated May
\n19, 1971  was issued  by  the  Assistant  Collector  to\t the
\nappellant. The\tappellant filed\t a long\t reply to  the\tshow
\ncause notice.  The Additional  Collector of  Customs by\t his
\norder dated July 6, 1971 held:\n<\/p>\n
\t  “By  declaring  the  buyer’s\tname  as  FEROELETRO
\n     YUGOSLAVIA and  the port  of discharge  and country  of
\n     final destination\tas ‘Trieste’  and Italy respectively
\n     in the  shipping bill  and the  mode of  payment as  in
\n     rupees in\tthe shipping bill as well as in the G. R. I.
\n     form,  the\t exporters  have  misdeclared  the  material
\n     particulars regarding  the prescribed manner of payment
\n     and have  thus clearly  contavened\t the  provisions  of
\n     Section 12(1)  of the  F.E.R.A. read with section 11 of
\n     the Customs  Act. The  goods are, therefore, liable for
\n     confiscation under\t section 113(d)\t and 113(i)  of\t the
\n     Customs Act  and the   exporters are liable for penalty
\n     under section 114 of the Customs Act.”\n<\/p><\/blockquote>\n
908<\/span><\/p>\n
He accordingly\tconfiscated the\t goods, giving\tan option to
\nthe appellant  to redeem  them on  payment of Rs. 5,000\/- in
\nlieu thereof.  A penalty  of Rs.  25,000\/- was imposed under
\nsection 114 of the Customs Act.\n<\/p>\n
     The appellant  filed a writ petition in the Kerala High
\nCourt to challenge the order of the Additional Collector. It
\nhad exercised  its option  of getting  the goods released on
\npayment of  Rs. 5,000\/-.  The fine  of Rs. 25,000\/- was also
\npaid. A learned single Judge of the High Court took the view
\nthat there  was no violation of section 12(1) of the Foreign
\nExchange  Regulation  Act  and\tquashed\t the  order  of\t the
\nAdditional Collector.\n<\/p>\n
     The Customs  Authority took the matter in appeal before
\na Bench\t of the High Court. The Bench has allowed the appeal
\nand up\t held  the order  of the Additional Collector. Hence
\nthis appeal  was filed after obtaining special leave of this
\nCourt.\n<\/p>\n
     Section 23A  of the  Foreign  Exchange  Regulation\t Act
\nprovides, inter\t atia, that  the restrictions  imposed by or
\nunder sub-section  (1) of section 12 shall be deemed to have
\nbeen imposed under section 11 of the Customs Act and all the
\nprovisions of  that Act\t shall have  the effect accordingly.
\nSection\t 11   of  the\tCustoms\t Act  empowers\tthe  Central
\nGovernment to  prohibit either absolutely or subject to such
\nconditions as  may be specified in a notification the import
\nor export of goods of any specified description. Section 113
\nsays:\n<\/p>\n
\t  “The following  export goods\tshall be  liable  to
\n     confiscation.-\n<\/p><\/blockquote>\n
     ………………..\n<\/p><\/blockquote>\n
\t  (d)  any goods attempted to be exported or brought
\n\t       with in\tthe limits  of any  customs area for
\n\t       the purpose  of being  exported, contrary  to
\n\t       any prohibition\timposed by or under this Act
\n\t       or any  other  law  for\tthe  time  being  in
\n\t       force;”\n<\/p><\/blockquote>\n
By virtue  of Section 23A of the Foreign Exchange Regulation
\nAct the\t prohibition imposed under section 12(1) of that Act
\nbecomes a  prohibition\timposed\t under\tsection\t 11  of\t the
\nCustoms Act.  And if the goods were attempted to be exported
\ncontrary to  the said prohibition the goods became liable to
\nconfiscation  under  section  113(d)  of  the  Customs\tAct.
\nConsequently the  person attempting to export the goods also
\nbecame liable  to pay  penalty under  section 114. There has
\nbeen no difficulty in correct appreciation of the law so far
\neither by  the Customs\tAuthority or  the High Court. A good
\ndeal of\t difficulty and\t confusion however cropped up in the
\ninterpretation of  section 12(1)  of  the  Foreign  Exchange
\nRegulation Act.\t Sub-section (1)  of section  12 as it stood
\nprior to  the amendment brought about by Act 40 of 1969 read
\nas follows:\n<\/p>\n
\t  “The Central\tGovernment may,\t by notification  in
\n     the Official  Gazette, prohibit  the taking  or sending
\n     out by  land, sea\tor air\t(hereinafter in this section
\n     referred to as export)
\n909<\/span>
\n     of any  goods  or\tclass  of  goods  specified  in\t the
\n     notification from\tIndia directly\tor indirectly to any
\n     place so  specified unless\t a declaration\tsupported by
\n     such evidence  as may be prescribed or so specified, is
\n     furnished by  the exporter\t to the prescribed authority
\n     that the  amount representing  the full export value of
\n     the goods\thas been,  or  will  within  the  prescribed
\n     period be paid in the prescribed manner.”\n<\/p><\/blockquote>\n
In Union  of India & Ors. v. M\/s Raj Bahadur Shree Ram Durga
\nPrasad (P)  Ltd. &  Ors.<\/a>(1)., Hegde, J. speaking for himself
\nand Bachawat,  J gave  a narrow\t interpretation\t to  section
\n12(1) as  it stood  then. Sikri,  J, as\t he then was, in his
\ndissenting judgment said:\n<\/p>\n
\t  “I have  to construe\tan Act\twhich was enacted in
\n     the interest  of the  national  economy.  A  deliberate
\n     large-scale  contravention\t  of  its  provisions  would
\n     affect the\t interests of  every man, woman and child in
\n     the country.  Such\t an  Act,  I  apprehend,  should  be
\n     construed\tso  as\tto  make  it  workable;\t it  should,
\n     however, receive a fair construction, doing no violence
\n     to the  language employed\tby the\tLegislature. It\t was
\n     said that\tif two\tconstructions are  possible the\t one
\n     that is in favour of the subject should be accepted. It
\n     is not necessary to pronounce on this proposition for I
\n     have come\tto the\tconclusion that\t there is  one\ttrue
\n     construction of  s. 12(1). But I should not be taken to
\n     be assenting  to this  proposition in  so far  as it is
\n     applicable to  an enactment  like the Exchange Act, for
\n     no\t subject  has  a  right\t to  sabotage  the  national
\n     economy.”\n<\/p><\/blockquote>\n
Section 12(1) was, thereafter, amended by Act 40 of 1969. It
\nthen read as followins:\n<\/p>\n
\t  “The Central\tGovernment may,\t by notification  in
\n     the Official  Gazette, prohibit  the taking  or sending
\n     out by  land, sea\tor air\t(hereinafter in this section
\n     referred to  as export) of all goods or of any goods or
\n     class of goods specified in the notification from India
\n     directly or indirectly to any place so specified unless
\n     the exporter  furnishes to\t the prescribed\t authority a
\n     declaration in  the prescribed  form supported  by such
\n     evidence as  may be prescribed or so specified and true
\n     in all  material particulars which, among others, shall
\n     include the amount representing-\n<\/p><\/blockquote>\n
\t  (i) the full export value of the goods; or\n<\/p><\/blockquote>\n
\t  (ii) if  the full export value of the goods is not
\n     ascertainable at  the time\t of export,  the value which
\n     the exporter,  haveing regard  to the prevailing market
\n     conditions, expects to receive on the sale of the goods
\n     in the course of international trade,
\n\t  and affirms  in the said declaration that the full
\n     export   value of\tthe goods  (whether ascertainable at
\n     the time of
\n910<\/span>
\n     export or\tnot) has been, or will within the prescribed
\n     period be, paid in the prescribed manner.”\n<\/p><\/blockquote>\n
Under the changed law the Exporter was required to furnish a
\ndeclaration in the prescribed form which must be true in all
\nmaterial particulars  including the  amount representing the
\nfull export  value of the goods or the expected export value
\nof the\tgoods. Apart  from the furnishing of the declaration
\ncontaining the\ttrue statements\t in all material particulars
\nthe exporter  under the amended section 12(1) of the Foreign
\nExchange Regulation  Act was  also required to affirm in the
\nsaid  declaration,   i.e.  in  the  document  or  the  paper
\ncontaining the\tdeclaration, that  the full  export value of
\nthe goods  will within\tthe prescribed period be paid in the
\nprescribed manner.  The affirmation  under the\tlast part of
\nsection 12(1)  is not required to be in any prescribed form.
\nTherefore, in  the form\t prescribed for\t the declaration  no
\nform of affirmation has been specified.\n<\/p>\n
     Broadly speaking  section 12(1) consists of 3 parts (1)
\nissuance  of   a  notification\tby  the\t Central  Government
\nprohibiting  the  export  of  certain  goods  to  any  place
\nspecified  in  the  notification;  (2)\tthe  prohibition  is
\nrelaxed and  export is permitted when the exporter furnishes
\na  declaration\t and  (3)   when  he  affirms  in  the\tsaid
\ndeclaration that  the payment  will  be\t in  the  prescribed
\nmanner. Until  and unless  the\texporter  affirms  that\t the
\npayment would  be in  the prescribed  manner, he  cannot  be
\nallowed to  export the\tgoods. This  is for  the purpose  of
\nconserving and\tpreserving the foreign exchange so that by a
\nsubterfuge no  person may  be  able  to\t harm  the  national
\neconomy by exporting the goods without such affirmation.\n<\/p>\n
     In the instant case on the findings of fact recorded by
\nthe Additional\tCollector which\t were accepted to be correct
\nby the High Court, both by the single Judge and the Division
\nBench, the  stress seems  to have  been laid  on the alleged
\nviolation  of\tthe  requirement  of  giving  true  material
\nparticulars in\tthe declaration.  And that enabled Mr. M. N.
\nPhadke to  strenously attack  the decision of the High Court
\nin appeal. Counsel submitted that whatever the appellant had
\nstated in the declaration was all true and nothing but true.
\nIt may\twell be,  he submitted,\t that  it  violated  certain
\nprovisions of  the  Customs  Act  or  the  Foreign  Exchange
\nRegulation  Act.   But\tsurely\t the  material\t particulars
\nfurnished by  the appellant  in its  declaration  not  being
\nuntrue in  any respect,\t there was  no infraction of section
\n12(1) of  the Foreign  Exchange Regulation Act. The argument
\nas presented  had substance  and force\tbut  did  not  merit
\nacceptance on close scrutiny.\n<\/p>\n
     The declaration  of the  buyer’s name  even if wrong in
\nthe shipping bill and invoice did not attract the provisions
\nof section  12(1) of the Foreign Exchange Regulation Act. In
\nthe form  prescribed under Rule 3 of the Rules (G.I.R. being
\none such  form) the  buyer’s name was not to be inserted. It
\nwas not\t given in the declaration furnished by the appellant
\nin that form. But the finding of the Additional Collector is
\nthat the destination of the goods was Trieste in Italy andin
\nthe declaration\t furnished in  form G.I.R. the appellant had
\nstated that  the payment  was to  be received  in  India  in
\nIndian rupees and this statement was untrue as being against
\nthe prescribed manner.\n<\/p>\n
911<\/span><\/p>\n
     It is  to be  noticed that\t under section\t12(1) as  it
\nstood  prior  to  the  amendment  by  Act  40  of  1969\t the
\ndeclaration had\t to contain  a\tstatement  that\t the  amount
\nrepresenting the full export value of the goods will be paid
\nin the\tprescribed manner.  But now this is not to be a part
\nof  the\t declaration  but  has\tto  be\tseparately  affirmed
\nalthough in the declaration itself. The learned single Judge
\nnoticed in  his judgment  that section\t12(1)(ii)  will\t not
\napply and the obligation of the exporter was:\n<\/p>\n
\t  “(a) to furnish  to  the  prescribed\tauthority  a
\n\t       declaration in  the prescribed form supported
\n\t       by such evidence as may be prescribed:\n<\/p><\/blockquote>\n
\t  (b)  which  declaration   must  be   true  in\t all
\n\t       material particulars  and that  among  others
\n\t       shall include  ‘the amount  representing\t the
\n\t       full export value of the goods’ and\n<\/p><\/blockquote>\n
\t  (c)  he must\taffirm in  the said declaration that
\n\t       the full\t export value  of  the\tgoods  will,
\n\t       within the  prescribed period, be paid in the
\n\t       prescribed manner.”\n<\/p><\/blockquote>\n
Stating that  “There is no case that there is no affirmation
\nin the declaration” the single Judge held that section 12(1)
\nwas not\t violated. The\tDivision Bench,\t however, noted\t the
\nfact that  the declaration  furnished by  the appellant “did
\nnot contain  an affirmation  as required by the last portion
\nof the said sub-section”. Yet because of the mode of payment
\nmentioned in the declaration being contrary to Rule 7 of the
\nRules the  Division Bench  upheld the view of the Additional
\nCollector that\tthe appellant  “had misdeclared the material
\nparticulars and attempted to export the goods in question in
\ncontravention of  the prohibition contained in section 12(1)
\nof the\tAct.” On  the facts and in the circumstances of this
\ncase  we  are  constrained  to\thold  that  even  after\t the
\nstatement in  column 2\tof Form\t G.R. I\t that the country of
\ndestination of\tgoods was  Italy the  statement in  column 5
\nthat the  payment was  to be  received in  India  in  Indian
\nRupees\twas   not  untrue.  The\t appellant  had\t managed  or
\nmanouvered to get the payment through the firm of Yugoslavia
\nin Indian  Rupees. The\tstatement therefore,  was not untrue
\nalthough it  was against the mode prescribed under Rule 7 of
\nthe  Rules.   But  here\t comes\tin  the\t importance  of\t the
\naffirmation in the declaration.\n<\/p>\n
     Rule 7 of the Rules says:\n<\/p>\n
\t  “The amount  representing the\t full value of goods
\n     exported to  the  countries  specified  in\t the  Second
\n     Schedule shall be paid through an authorised dealer and
\n     unless otherwise  authorised by the Reserve Bank, shall
\n     be paid in the manner specified in the said Schedule.”
\nIn the\tSecond Schedule Italy occurs in Group A-“Convertible
\nAccount Countries”.  In that  case the\tapproved methods  of
\npayment are:\n<\/p>\n
\t  “(a) Currency of any country in this sub-group.\n<\/p><\/blockquote>\n
\t  (b)  Sterling\t from\tan  ‘External  Account’,  as
\n\t       defined under  the  U.  K.  Exchange  Control
\n\t       Regulations.\n<\/p><\/blockquote>\n
912<\/span><\/p>\n
\t  (c)  Rupees from  the account\t of a  bank  in\t any
\n\t       country in the Convertible Account group.”\n<\/p><\/blockquote>\n
Yugoslavia in  the Second  Schedule finds  place in  Group B
\n“Bilateral Account  countries” where  the approved method of
\npayment is “Rupees from the account of a bank in the country
\nof import.”\n<\/p>\n
     In the  present case the absence of affirmation had its
\nown signficance.  It was  difficult, almost  impossible, for
\nthe appellant  to affirm  that the  full export value of the
\ngoods was to be paid in one of the three modes prescribed in
\nthe Second Schedule to the Rules for the export of the goods
\nto Italy.  We are,  therefore, of  the opinion that although
\nthe statement in the declaration that the value of the goods
\nmentioned in column 4 at Rs. 63,301.50 was to be received in
\nIndia in  Indian rupees for the export of goods to Italy was
\nnot untrue, the affirmation, if made, would have been either
\nfalse or  contrary to  the requirement of the law. If in the
\naffirmation the\t appellant had\tstated that for the value of
\nthe goods exported to Italy it was to receive the payment in
\nIndian rupees  through the Chartered Bank Ltd. Cochin as per
\nthe declaration,  then the  affirmation would  have violated
\nsection 12(1)  as it  would not\t have  been  an\t affirmation
\nstating\t that\tthe  export  value  would  be  paid  in\t the
\nprescribed manner. Absence of affirmation in the declaration
\nfurnished by  the appellant is tant amount to failure on the
\npart of\t the appellant to comply with the requirement of the
\nlaw engrafted  in section  12(1)  of  the  Foreign  Exchange
\nRegulation Act.\t That being so, the decision of the Division
\nBench of  the High Court that the appellant had attempted to
\nexport goods  in violation of the restrictions imposed under
\nsection 12(1)  of the Foreign Exchange Regulation Act is fit
\nto be upheld, but on a different basis.\n<\/p>\n
     In cases of economic offences and specially in relation
\nto the law of Foreign Exchange no leniency in the quantum of
\npunishment is  warranted.  But\ton  the\t facts\tand  in\t the
\ncircumstances of  this case  we feel persuaded to reduce the
\namount of  penalty  imposed  upon  the\tappellant  from\t Rs.
\n25,000\/- to Rs. 15,000\/-. The direction as to the payment of
\nRs. 5,000\/-  in lieu of confiscation of the goods is upheld.
\nSince the  law engrafted in the amended Section 12(1) of the
\nForeign Exchange Regulation Act was not very clear either to
\nthe Custom Authorities or to the High Court resulting in the
\nrecording of  the findings against the petitioner on a wrong
\nbasis, although not affecting the substance of the view that
\nthe appellant  had violated  Section 12(1)  of\tthe  Foreign
\nExchange Regulation  Act, we  have thought  it fit to reduce
\nthe quantum of penalty by Rs. 10,000\/-\n<\/p>\n
     Before we\tpart with this case we may just mention that
\nnow the\t Foreign Exchange  Regulation Act in force is an Act
\nof 1973-Central\t Act 46\t of 1973. Section 18(1)(a) is almost
\nthe same as Section 12(1) of the Act of 1947.\n<\/p>\n
     In the  result the\t appeal is  dismissed but subject to
\nthe modification  in the  quantum of  penalty imposed  under
\nSection 114 of the Customs Act 1962. In the circumstances we
\nshall make no order as to costs in this Court.\n<\/p>\n
V.P.S.\t\t\t\t\t   Appeal dismissed.\n913<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India South India Coir Mills Poochakkal vs The Additional Collector Of … on 25 March, 1976 Equivalent citations: 1976 AIR 1527, 1976 SCR (3) 905 Author: N Untwalia Bench: Untwalia, N.L. PETITIONER: SOUTH INDIA COIR MILLS POOCHAKKAL Vs. RESPONDENT: THE ADDITIONAL COLLECTOR OF CUSTOMS AND CENTRAL EXCISE ANDAN DATE OF JUDGMENT25\/03\/1976 BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-92851","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSouth India Coir Mills Poochakkal vs The Additional Collector Of ... on 25 March, 1976 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/south-india-coir-mills-poochakkal-vs-the-additional-collector-of-on-25-march-1976\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"South India Coir Mills Poochakkal vs The Additional Collector Of ... on 25 March, 1976 - 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