Case No: Civil Appeal No. 31 of 1976
Judge: Kemaluddin Hossain,
Court: Appellate Division ,,
Advocate: Mr. Aminul Hoque,Mr. K. A. Bakr,,
Citation: 30 DLR (AD) (1978) 226
Case Year: 1978
Appellant: Collector of Customs
Respondent: M.M Shafullah
Subject: Customs, Fiscal Law,
Delivery Date: 1977-6-29
Syed A. B. Nahmud Hossain, CJ.
Kemaluddin Hossain, J.
D. C. Bhaitacharya, J.
Collector of Customs, Chittagong
June 29, 1977.
Customs Act (VIII of 1878)
Section 167 (9B)
Such goods in section 167(9B) mean goods which are liable to be confiscated under section 39 of the Act when they have arrived at the port.
Cases Referred to:
Bal Kissan Vs. Collector of Customs AIR 1959 Calcutta 533; Palrwala Brothers Ltd. Vs. Collector of Customs AIR 1958 Calcutta 232.
K.A. Bakr, Attorney-General with Sultan Hossain Khan, Deputy Attorney-General, instructed by A. W. Malik, Advocate-on-Record—For the Appellants.
Aminul Haq, Advocates-on-Record For the Respondent No. 2.
Altaf Hossain, Advocate instructed by Abdur Rab-II, Advocate-on-Record–for the Respondent No. 3.
Not Represented- Respondent No. 1.
Civil Appeal No. 31 of 1976
(From the Judgment and order dated the 2nd April,1970 passed by the Dacca High Court Writ Petition No. 101 of 1968)
In this appeal an interpretation of S. 167(9B) of the Sea Customs Act is involved.
The facts leading to the question in appeal are that M.M. Shafiullah, the firm respondent, the sole proprietor of a firm at Khulna deals with agricultural machineries and implements, was granted an important licence worth several lakhs of rupees for importing Japanese Power trillers and accessories. He opened a letter of credit with the Mercantile Bank Limited, Dacca, for Rs. 7,00,000/- (rupees seven Lakh), for import of power trillers. He placed orders with a firm at Hong Kong, and in course of time, certain consignment arrived at the Chittagong port. The clearing Agents of the respondent submitted a bill of entry stating therein the particulars of the consignment contained power trillers valued at Rs. 6,98,703/-. It has however, found that at the time of delivery of the consignment that, it contained birth tubes worth Rs. 5.500/- only, instead of power tillers. Thereupon, the Collector of Customs imposed penalty of rupees ten lakhs on the first respondent under section 167(9B) of the Sea Customs Act. The first respondent then filed a writ petition in the High Court of East Pakistan challenging the validity of the order of penalty.
2. A Bench of the High Court took the view that the penalty under section 167(9B) of the Act, can not exceed one thousand rupees or three times the value of the goods actually imported, whichever is greater and, so allowed the writ petition, and declared that the penalty of rupees ten lakhs, to the extent that it exceeded three times the value of the imported bath-tubs, to be without lawful authority. The appeal is directed against the order of the High Court.
3. Mr. Attorney-General has appeared for the appellant, and none for the principal respondent Mr. Aminul Huq, Advocate-on-record for the Respondent 2 and Mr. Altaf Hossain, counsel for respondent 3, have submitted that they have no concern with the appeal, and have prayed for costs for being unnecessarily impleaded in the appeal.
4. To appreciate the point the relevant provisions of section 167(9B) of the Act may be set out:
"If, in relation to any goods, an offence is committed under section 39, the goods in question shall be liable to confiscation and every person concerned in any such offence shall be liable to a penalty not exceeding one thousand rupees or three times the value of such goods, whichever is the greater".
5. Along with this provisions, we are to remember the salient provision of section 39 of the Sea Customs Act. This section has made it an offence, to put it briefly, if any untrue statement made in any declaration, notice certificate or other document lodged with the Customs authority. The section further provides (hat where there has been any under payment or erroneous refund of duty, the Customs Authority within a period of three years from the date of first assessment, or making of the refund, may recover the deficiency. Keeping this provision in mind, if we turn to the interpretation of S. I67 (9B), we find that the words that require consideration are "such goods" in the penultimate clause of the Sub-section. The words in that clause have been so placed, that by grammatical construction, they denote the goods referred to in the proceeding clause. The proceeding clause says, that goods in question shall be liable to confiscation. This clause again refers to the principal clause which says that if in relation to any goods, an offence has been committed under section 39, the consequence set out earlier will follow. To reconstruct the entire sub-section, we find that, if in relation to any goods, an offence is committed by making a false declaration, those goods shall be liable to confiscation, and every person concerned in such offence shall be liable to a penalty which shall not exceed cither one thousand rupees, or three times the value of such goods, which ever is greater. 'Such goods' therefore clearly refer (o goods liable to confiscation. Only those goods could be confiscated in relation to which an offence under section 39 has been commuted. They could not be confiscated unless they have arrived at the port. We, therefore, find that the interpretation of the High Court of Section 167(9B) of the Sea Customs Act is correct.
6. Mr. Attorney-General, however, has cited a few reported decisions in support of his contention that 'such goods' refer not to the confiscated goods, but the declared goods in any of the Customs papers, where a false declaration has been made. The cited decision are not all relevant to the present case except two, one, Bal Kissan Vs. Collector of Customs, AIR 1959 Calcutta 533, and the other Palrwala Brothers Ltd. Vs. Collector of Customs AIR 1958 Calcutta 232. both the decisions are on the interpretation of s. 167(8) of the Sea Customs Act. A comparison of two provisions of section 167(9B) and 167 (8) shows that, there is a difference of language between the two. Apart from that none of the cited decisions have given any interpretation on the question we rare trying to arrive at. We find also it difficult to accept the Learned-Attorney-Generals interpretation which cannot be accommodated within the language of S. 167(9B) of the Act.
For these reasons this appeal fails and it is dismissed, but having regard to the circumstance of the case, we make no order as to costs.