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Petitioner: JACK D'CRUZ VS Respondent: THE COLLECTOR OF CUSTOMS, CHITTAGONG
P L D 1969 Dacca 691
P L D 1969 Dacca 691
Before Salahuddin Ahmed and Abdul Moudud, JJ
JACK D'CRUZ‑Petitioner
Versus
THE COLLECTOR OF CUSTOMS, CHITTAGONG AND OTHERS‑Respondents
Writ Petition No. 236 of 1967, decided on 7th May 1968.
National justice‑Maxim: audi alteram partem (no one should be condemned unheard)‑Person proceeded against specifically asked by authority to show cause against proposed action either personally or through pleader but failing to avail of either opportunity and instead submitting written explanation‑No contravention of principle of natural justice.
Federation of Pakistan v. Sardar Ali P L D 1959 S C (Pak.) 25 and Chief Commissioner, Karachi v. Dina Sohrab Katrak P L ID 1959 S C (Pak.) 45 distinguished.
Dr. Kamal Hossain, Mozammel Hogue Khan and Altaf Hossain for Petitioner.
Md. Nurul Huda, Deputy Attorney, S. S. Hoda and Noor Mohammad for Respondent No. 1. Dates of hearing : 1st and 2nd May 1968.
JUDGMENT
SALAHUDDIN AHMED, J.‑This Rule is directed against an order of respondent No. 1, the Collector of Customs, Chittagong directing confiscation of the goods of the petitioner under section 167(8‑B) of the Sea Customs Act read with section 3(iii) of the Imports and Exports Control Act, and also imposing personal penalty of Rs. 10,000 on the petitioner under section 167 (9‑B) of the Sea Customs Act.
The petitioner who is an importer of various commodities placed an order for supply of certain quantity of brass screws with Liberty Trading Company Limited of Japan, for that purpose he opened a letter of credit. He received an invoice from the said Liberty Trading Company Limited specifying "Brass screws in terms of the original indent No. 6/65 dated 24‑5‑65". The invoice intimated to the petitioner that the said brass screws were dispatched on the ship "GANGES MARU" from kobe in Japan to Chittagong. The Bill of Lading received by the petitioner also contained the statement that 308 cases of brass screws had been shipped on s s. "GANGES MARU". On the basis of the said invoice and bill of lading the petitioner drew up relevant declaration form for clearance of the said consignment. On arrival of the goods, however, the petitioner received from respondent No. 1 a notice dated 8‑11‑65 alleging that on physical examination it was found that out of 308 cases, only 7 cases contained brass screws and the remaining cases contained galvanised iron roofing screws of restricted sizes. The notice further stated that the iron roofing screws could only be imported on Export Bonus Licenses, and that the said iron roofing screws were valued at Rs.27,027.59 paisa. . It was further alleged that this was a case of violation of import Trade Control Regulation read with section 19 of the Sea Customs Act. The petitioner was, therefore, called upon to show cause within ten days from the date of the issue of the notice as to why penal action should not be taken against him under section 167 (8‑B) and (9‑B) of the Sea Customs Act. The petitioner has stated that as he was totally innocent, he immediately replied on 9‑11‑65 stating that there was no deliberate misdeclaration inasmuch as the petitioner had ordered brass screws and had opened a letter of credit for import of brass screws, as would be evident from the letter of credit. The petitioner averred that respondent No. 1, the Collector of Customs, however, without affording any hearing to the petitioner and without considering any evidence on his behalf passed the impugned order confiscating the petitioner's consignment as well as imposing a personal penalty upon him. The petitioner's appeal to respondent No. 2, Central Board of Revenue as well as his subsequent revisional application to respondent No. 3, Government of Pakistan were summarily rejected without giving the petitioner an opportunity of being heard. The petitioner has, therefore, submitted that the impugned order of confiscation as well as the orders summarily rejecting the petitioner's appeal and revisional application are illegal inasmuch as they were made without giving prior opportunity to the petitioner to be heard.
On behalf of respondent No. 1 an affidavit sworn by Principal Appraiser of Customs, Chittagong has been put in. It has been asserted in the affidavit that the petitioner had deliberately misdeclared the goods to evade Import Trade Control Regulation, and thus imported an entirely different type of goods not covered by Free List, and without possessing any import licence. It is asserted that the petitioner was given full opportunity to explain the allegations against him and that he failed to adduce any evidence to prove the wrong shipment by the shipper as claimed by the petitioner.
Mr. Kamal Hossain, learned Advocate appearing on behalf of the petitioner has strenuously argued that the order of confis?cation as well as two other orders rejecting the appeal and the revisional application have be.‑n made in contravention of the principle of natural justice inasmuch as no proper opportunity for hearing was given to the petitioner.
It is desirable to quote in extenso the aforesaid show cause notice dated 6‑11‑65 that was issued to the petitioner. The show‑cause notice is as follows :? ??????????? REGISTERED WITH A/D. ??????????? ???????????????????????????????????? Government of Pakistan ??????????? ?????????????????????????????????? Customs House : Chittagong.
No. 165/AP/GR‑3D/65‑66/9918‑Cus.???????????? Dated 8‑11‑65. Messrs Pak. Exporters and Importers, 312/E, Love Lone, Chittagong.
Subject :‑Show Cause Memo for Import of 7 Cases Brass Wood Screws and 301 Cases Roofing Screws (Iron and Steel) Per s s. GANGES MA‑RU Rotation No. 534/65 Line No. 87 Value for Rs. 31,189.33.
You have imported the above‑mentioned consignment under free list against letter of credit No. 6229 dated 24‑5‑65 and have declared the goods as Brass Screws whereas on physical examination it has been found that out of 308 cases, only 7 cases contain brass wood Screws remaining cases contain Galvanised Iron Roofing Screws of restricted sixes.. Iron Roofing Screws are correctly classified under Part IV/H‑2/65 of the I. T. C. schedule, and these are not importable under Free List, but can be imported only on Export Bonus Licences. Hence this is a case of L. T. C. violation read with section 19 of Sea Customs Act. You have also deliberately misdeclared the goods as Brass Screws to evade I. T. C. restriction.
You are, therefore, called upon to the show cause within 10(ten) days from the date of issue of this Memo. as to why penal action under the provisions of section 167 (8‑B) and (9‑B) of the Sea Customs Act should not be taken against you for violation of I. T. C. rules and for misdeclaration of description of goods viz. "Roofing Screws as Brass Screws" valued at Rs. 27,027. 59 (C & F). You are also requested to state whether you wish to be heard in person or through a pleader.
? ????????????????????????????????????????????????????????????????????????????????????????????? ??(Sd.) S. M. Elahi, Collector of Customs ????? Chittagong, ??????? 6-11‑65."
?(The underlining" is ours).
It is evident from the show‑cause notice justice quoted that the petitioner was fully apprised of the allegations against him and he was asked to show cause within ten days of the date of the issue of the notice, that is, 6‑11‑65. Admittedly the petitioner received the notice on 8‑11‑65 and he put in his explanation on the very next day, that is, on 9‑11‑65. It is also evident from the show?-cause notice that the petitioner was particularly asked to state whether he wished to be heard in person. In pursuance of this notice the petitioner submitted his explanation on 9‑I 1‑65. The explanation is as follows: ‑
PAK EXPORTERS & IMPORTERS HARDWARE, GENERAL MERCHANTS, ORDER SUPPLIERS
P. O. Box No. 352. Chittagong. East Pakistan. 312/E, Live Lane.???????????????????????????????????????????????????????? Dated 9th November 1965.
??????????? ?? Ref. No. 19/65. The Collector of Customs, Customs House, Chittagong.
Subject :‑303 C/s. Brass Screws Ex. s.s. GANGES MARU Rot. 534/65/L/No. 87.
Sir,
With reference to your Memo. No. 165/AP/GR/3D/65‑66/9919?Cus. dated 8‑11‑65, we beg to state that this consignment has been imported against the L/C. No. 6229 dated 24‑5‑65, a perusal of which would show that Brass Screws were to be imported whereas as per examination report as indicated in the memo. that partial consignment is made up of Brass Screws and the rest Galvd. Iron roofing screws. It will be seen from the above that we have not deliberately misdeclared the goods as such we request you to kindly take a linient view of the matter and for this act of kindness your humble petitioner shall ever pray. Thanking you.
Yours faithfully." It is, therefore, abundantly clear that although the petitioner was given a full opportunity to defend himself and although he was asked to state whether he would like to appear personally or through a representative, the petitioner neither asked for a personal hearing nor for time to adduce evidence or supplement his defence. The petitioner's only defence was that the letter of credit as well as the invoice and the bill of lading showed that the petitioner imported brass screws and therefore, there was no deliberate misrepresentation on the part of the petitioner in drawing up the aforesaid declaration form for clearance of the said consignment.
It is indeed significant that the petitioner never produced before any one of the authorities, the aforesaid indent to show that was actually the order that was placed by the petitioner with the aforesaid Liberty Trading Company Limited of Japan. The petitioner did not even produce the document before this Court.
The petitioner not having cared for a personal hearing before respondent No. 1, the Collector of Customs, and having indicated no desire‑to be present personally before the appellate authority, the disposal of the appeal on the basis of the records of the case is neither illegal nor improper. So far as the rejection of the petitioner's revisional application is concerned the matter was within the discretion of the authority, and no further opportunity to the petitioner was necessary.
Mr. Kamal Hossain in support of his contention has cited before us two decisions of the Supreme Court in the cases of the Federation of Pakistan v. Sardar Ali (P L D 1959 S C (Pak.) 25) and Chief Commis?sioner Karachi v. Dina Sohrab Katrak (P L D 1959 S C (Pak.) 45). As regards the first case reported at page 25, the offence was one under section 167(81) of the Sea Customs Act and the delinquent was not given any opportunity of personal hearing at all. The second case reported at p. 45 was a case under Sind (Requisition of Land) Act (XLVI of 1947), and the aggrieved person was not given any opportunity to be heard on his appeal. It may be noted however, that the first time that the aggrieved person had an opportunity to object to the requisition in question was at the appellate stage and not earlier. It will thus be noticed that, the facts of these two cases are altogether different from the one that is before us. In the case before us as noticed already, although the petitioner was specifically asked to say whether he wished to be heard in person or through a pleader the petitioner chose to remain silent and failed to ask for either.
Furthermore at no point of time the petitioner expressed any desire to be heard personally or through his representative, we, therefore, do not think there has been any contravention of the principles of natural Justice.
Mr. Kamal Hossain has next contended that the imposition of personal penalty under section 167(9‑B) of the Sea Customs Act is illegal for two reasons. Firstly, no indication of the charge under section 167 (9‑B) of the Sea Customs Act was given to the petitioner in the aforesaid show‑cause notice and there is no finding that the petitioner had deliberately made any false statement. Secondly, the respondents have not disclosed any basis for the extent of the penalty imposed upon the petitioner.
Section 167(9‑B) is as follows: ‑
"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 time the value of such goods, whichever is the greater."
The aforesaid show‑cause notice Annexure `C' to the petition has clearly stated; "you have also deliberately misdeclared the goods as Brass Screws to evade I. T. C. restriction". It is, therefore, apparent that the petitioner was told that he had made certain false statements in the aforesaid declaration drawn up by him in connection with a matter of customs. The impugned order dated 2‑12‑65 of respondent No. 1, the Collector of Customs, ordering confiscation of the goods of the petitioner clearly contained the requisite finding in the following terms: ?"I am convinced that the party has deliberately misdeclared the consignment."
As regards the amount of penalty imposed on the petitioner, namely, Rs. 10,000 it may have been noticed that in the aforesaid show‑cause notice it has been stated : "roofing Screws as Brass Screws" valued Rs. 27,027.59 (C and F)". The valuation does not appear to have been seriously challenged by the petitioner. Furthermore the petitioner has not given his estimate of the value of the aforesaid iron roofing screws. Besides the personal penalty of Rs. 10,000 is obviously well within the limit prescribed under section 167 (9‑B) of the Sea Customs Act, namely, not exceeding three times the value of the goods in question, we, therefore, do not think there is any sub, stance in this contention.
The Rule is accordingly discharged with costs which we assess at five Gold Mohurs.
ABDUL MOUDUD.‑I agree.
K. B. A.
Rule discharged.