Case: The Collector Of Customs, Baroda Vs. Digvijaysinhji Spinning &amp; Weaving Mills Ltd

empowered to nominate the subordinate officers of Customs to adjudge question within certain pecuniary limits. That apart, S. 3(a) of the Act defines "Chief Customs authority" to mean the Central Board of Revenue. The Central Board of Revenue is a statutory authority and, though it can only function through officers appointed to the said Board, it is inappropriate to call it an officer of Customs. In this situation, when under the provisions of the Act there is no scope for realization of any penalty imposed for the first time by the Chief Customs Authority, it would be more in accord with the scheme of the Act to construe the words "an officer of Customs" as an officer of the Customs who is authorized to adjudicate in the first instance rate of duty or penalty under S. 182 of the Act. This construction, it is said, would lead to an anomaly of the statute conferring a power on the Chief Customs Authority to impose a penalty and at the same time withholding from it a procedure to enforce its collection. As we have pointed out, such an anomaly cannot arise under the provisions of the Act, for there is no section which empowers the Chief Customs Authority to impose a penalty higher than that imposed by the Customs Officer.6. Assuming that the Chief Customs Authority is an Officer of Customs within the meaning of S. 193 of the Act, it had to initiate proceedings under the said section; but in this case the Collector of Customs notified in writing to the Magistrate for recovering the said penalty.7. Learned counsel for the appellant contends that an order made by the Chief Customs Authority imposing a penalty shall be deemed in law to be an order made by the original authority, that is, the Collector of Customs and, therefore, the said order for the purpose of enforcement shall be treated as the order of the Collector of Customs. It is said that this legal position would flow from the proposition that an appeal is a continuation of a suit. The said proposition is unexceptionable: see Rangaswamy v. Alagayammal, AIR 1915 Mad 1133, Kristnamachariar v. Mangammal, ILR 26 Mad 91 at pp. 95-96 (FB), Lachmeshwar Prasad v. Keshwar Lal, 1940 FCR 84 at p. 103: (AIR 1941 FC 5 at p. 13).But neither the said decisions nor the principles laid down therein can have any bearing on the question whether an order made for the first time by an appellate authority could in law be deemed to be one made by the original authority. In the absence of any statutory fiction giving rise to that result, it is not permissible to treat the order made by one authority as that made by another authority. If so, it follows that the order of the Chief Customs Authority imposing a penalty for the first time cannot be treated to be an order of the Collector of Customs within the meaning of the S. 193 of the Act.8. As we have pointed out, the Chief Customs Authority has no power to impose a penalty for the first time under S. 188 of the Act; but it has power under S. 190 of the Act to commute the order of confiscation to a penalty not exceeding the value of the goods confiscated. Though the Chief Customs Authority in its order dated January 15, 1954, did not expressly rely on S. 190 of the Act, it cannot be disputed that it has jurisdiction to pass such an order thereunder subject to the conditions laid down therein. The condition for the exercise of that power is that it should have obtained the consent of the party whose goods were confiscated. The High Court in its order observed that there was nothing before it to show that the consent of the owner of the goods ordered to be confiscated was not obtained before the order of confiscation was commuted to one of penalty by the Chief Customs Authority. If that be taken as a finding the question of the legal effect of an order of commutation would arise for consideration. Would such an order be deemed to be made in substitution of that of an original authority? Could it be said that the commuted sentence shall be deemed in law a sentence imposed by the original tribunal? But these questions need not detain us, as we are not satisfied on the material placed before us that the condition of consent has been fulfilled in this case. The High Court in effect drew a presumption in favour of the regular performance of an official act. But this presumption is only optional. In a case like this when the validity of an order depends upon the fulfilment of a condition, the party relying upon the presumption should at least show that the order on the face of it is regular and is in conformity with the provisions of the statute. But in the present case the order of the Chief Customs Authority ex facie does not show that it was made under S. 190 of the Act. Indeed it is purported to have been made under S. 167 (8) of the Act. If as a matter of fact the said Authority made the order of commutation with the consent of the owner of the goods it would have certainly jurisdiction to make such an order under S. 190 of the Act. Though there was no such recital, it would have been open to the appellant to establish that fact by necessary evidence. In the absence of any such evidence we must hold that it has not been established that the Chief Customs Authority made its order under S. 190 of the Act with the consent of the respondent.9. This will not preclude the State from establishing by relevant evidence that the penalty was imposed under S. 190 of the Act with the consent of the owner of the goods in an appropriate proceeding.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The result of the provisions, therefore is that there would never by a contingency or necessity for an appellate tribunal to enforce payment of penalty imposed by it, for no appeal would be heard by it unless the penalty was deposited asconstruction, it is said, would lead to an anomaly of the statute conferring a power on the Chief Customs Authority to impose a penalty and at the same time withholding from it a procedure to enforce its collection. As we have pointed out, such an anomaly cannot arise under the provisions of the Act, for there is no section which empowers the Chief Customs Authority to impose a penalty higher than that imposed by the Customs Officer.6. Assuming that the Chief Customs Authority is an Officer of Customs within the meaning of S. 193 of the Act, it had to initiate proceedings under the said section; but in this case the Collector of Customs notified in writing to the Magistrate for recovering the saidis said that this legal position would flow from the proposition that an appeal is a continuation of a suit. The said proposition isneither the said decisions nor the principles laid down therein can have any bearing on the question whether an order made for the first time by an appellate authority could in law be deemed to be one made by the original authority. In the absence of any statutory fiction giving rise to that result, it is not permissible to treat the order made by one authority as that made by another authority. If so, it follows that the order of the Chief Customs Authority imposing a penalty for the first time cannot be treated to be an order of the Collector of Customs within the meaning of the S. 193 of thethese questions need not detain us, as we are not satisfied on the material placed before us that the condition of consent has been fulfilled in this case. The High Court in effect drew a presumption in favour of the regular performance of an official act. But this presumption is only optional. In a case like this when the validity of an order depends upon the fulfilment of a condition, the party relying upon the presumption should at least show that the order on the face of it is regular and is in conformity with the provisions of the statute. But in the present case the order of the Chief Customs Authority ex facie does not show that it was made under S. 190 of the Act. Indeed it is purported to have been made under S. 167 (8) of the Act. If as a matter of fact the said Authority made the order of commutation with the consent of the owner of the goods it would have certainly jurisdiction to make such an order under S. 190 of the Act. Though there was no such recital, it would have been open to the appellant to establish that fact by necessary evidence. In the absence of any such evidence we must hold that it has not been established that the Chief Customs Authority made its order under S. 190 of the Act with the consent of the respondent.9. This will not preclude the State from establishing by relevant evidence that the penalty was imposed under S. 190 of the Act with the consent of the owner of the goods in an appropriate proceeding.