Customs, Excise and Gold Tribunal - Calcutta
Mohan B. Samtani vs Collector Of Customs on 6 December, 1989
Equivalent citations: 1990ECR197(TRI.KOLKATA), 1990(50)ELT592(TRI-KOLKATA)
ORDER T.P. Nambiar, Member (J)
1. The appellant before us being aggrieved by the orders passed by the Central Board of Excise and Customs dated 18-7-1981 in Order No. 506A of 1981, confirming the orders passed by the learned Additional Collector of Customs, Calcutta in Order No. 09 dated 29-11-1980, presented a revision petition to the Govt. of India under Section 131 of the Customs Act, 1962. Thereafter, by virtue of the provision of Sub-section (2) of Section 131(B) of the Customs Act, 1962, the same revision petition stood transferred to this Tribunal and is accordingly numbered as Appeal No. CD(T)CAL-169/81.
2. The brief facts of the case are that there was an information that one Mohan B. Samtani was engaged in smuggling out antiques through unaccompanied baggage shown to be belonging to some privileged persons, it was gathered that the said Mohan Samtani was associated with the State Trading Corporation of Sikkim. A watch was therefore maintained keeping in view the nature of information received as mentioned above. On 27-3-1973 a duplicate shipping bill No. AEF 235 dated 6-1-1973 relating to two packages on account of the State Trading Corporation of Sikkim was presented at Calcutta Airport along with two cases booked under airway bill No. 061-11947854 dated 22-3-1973 for shipment by B.O.A.C. against the said shipping bill. The description of the packages in the S/B was shown as "unaccompanied personal effects of His Majesty The Chogyal P.T. Namgyal of Sikkim. Books, etc. having declared gross weight as 160 Kgs. and net 135 Kgs. It was further certified in the shipping bill that the consignment does not contain arms, ammunition or antiques, rationed articles or any other items which is restricted and having no commercial value as no transaction in foreign exchange was involved. The market price of the consignment was declared as Rs. 150/-. A declaration as to the truth of the declaration was also subscribed by the representative on behalf of the State Trading Corporation of Sikkim. The shipping bill was processed by M/s. Orient Transport Co., Clearing Agents of Custom House. As there was already a previous information the packages were" not allowed immediate clearance but further inquiries were taken up. The original shipping bill in respect of the said consignment read the weight as 85 Kgs. gross and 75 Kgs. netx which further gave rise to the suspicion that the shipment sought to be affected by altering the given weight in the duplicate shipping bill was not innocuous. Shri Mohan B. Samtani in a written certificate dated 2-1-1973 signed by him, has certified that "two packages personal effects containing books etc. belong to His Majesty The Chogyal of Sikkim, who is now in New York". This certificate is pasted on the reverse of the original copy of the said shipping bill.
3. In a letter dated 8-5-1973 Shri Mohan B. Samtani expressed his displeasure at the datention of the packages inter alia stating that these contained personal effect booked to His Majesty the Chogyal of Sikkim, who is now at New York. A further communication dated 10th May, 1973 was received from the said Mohan Samtani as representative of the State Trading Corporation of Sikkim wherein he contended that if there were any irregularities about the shipment of unaccompanied packages these should be pointed out to him and suggested that either the shipment of the packages to New York should be allowed or these should be returned to His Majesty The Chogyal of Sikkim in Gangtok. In another letter dated 25th May, 1973 Shri Mohan Samtani as representatives of S.T.C. of Sikkim repeated his earlier suggestion. In the Custom House letter dated 31-5-1973 Shri Mohan B. Samtani was asked to appear before the Customs Officer on 2-6-1973 in connection with the packages in question on 1-6-1973 on behalf of State Trading Corporation of Sikkim it was intimated that Shri Mohan B. Samtani, the representative was out of station. In a letter dated 8th June, 1973 Shri Mohan B. Samtani referred to a telegram sent by him concerning his attendance at Calcutta about the packages and he enclosed a letter dated 4-6-1973 addressed to this Custom by His Highness Chogyal of Sikkim and another letter dated 30-5-1973 from the Under Secretary to the Chogyal of Sikkim claiming that the two packages under airway bill No. 061-11947854 dated 22-3-1973 which belonged to the Chogyal of Sikkim should be handed over to the representative of State Trading Corporation of Sikkim for onward transmission to the Gangtok office. Shri Mohan B. Samtani appeared at this Custom House on 8-6-1973 and made a Statement pursuant to the Summons issued under Section 108 of the Customs Act, 1962, inter alia, to the effect that the shipping bill No. AEF 235 dated 6-1-1973 was processed by M/s. Orient Transport Co. at his instance and the certificate attached to the shipping bill saying that the two packages contained personal effect namely books, etc. belonging to his Majesty the Chogyal of Sikkim was subscribed and endorsed by him and that the two packages were brought by Shri Bharat Singh A.D.C. of the Chogyal sometime around 16th or 17th May, 1973 and was stored at the latter's flat at No.4, Wood Street, Calcutta. From his recollection he gave description of the wooden crates stating that he had deputed his office peon, Basana to carry the shipping bill and the packages to the B.O.A.C. city booking office. On an inspection of the duplicate shipping bill he contended that the initials on the shipping bill under the column for quantity had not been done by any one of his office staff nor he gave anything in writing for amending the weights on the duplicate shipping bill. About the certificate attached to the shipping bill he stated that he endorsed it without knowing the contents of the packages and could not say whether there were books at all inside them. He, however, said that he deputed his driver Mazumdar to take the packages from Wood Street flat to B.O.A.C. City Office accompanied by his peon, Basana.
4. The above-mentioned two wooden packages were thereafter opened on the same day i.e. 8-6-1973 in presence of Shri Mohan B. Samtani, two independent witnesses Shri P.K. Sen of M/s. Orient Transport Co. and officials of Archaeological Department of Government of India and these were found to contain a bronze idol of Nataraja and its pedestal. The official of Archaeological Department on examination of the objects confirmed that the idol was a priceless one of Nataraja belonging to 11-12 century A.D. There were no books inside these packages as declared in the.... Section 110 of the Customs Act on the Grounds that these were attempted to be exported out of India in contravention of the prohibition imposed under the Antiquities (Export Control) Act, 1947 and the Customs Act, 1962. The wooden boxes along with the tarpaulin covers were seized as these were considered to be useful for or relevant to the proceeding under the Customs Act, 1962. A search list was prepared incorporating the particualrs of the seized goods, nature of packaging etc. and a copy of the same was handed over to Shri Samtani under receipt. On 8-6-1973 subsequent to the seizure of the goods as mentioned above Shri Mohan B. Samtani made another statement repeating that the two packages which were examined by the Customs were the ones that were brought by the A.D.C. of the Chogyal on 16th or 17th March, 1973 when he came to Calcutta by Darjeeling Mail. He saw the said two packages at 4, Wood Street when he went to meet the A.D.C. there. His (Shri Samtani's) driver was sent to bring the packages from Sealdah Station in his Ambassador car. He himself made the changes in the duplicate shipping bill and out his initials thereon. The shipping bill was then sent to M/s. Orient Transport Co. for revalidation of the date to effect shipment. In the said statement he further stated that Shri Balaram was the caretaker at 4, Wood Street Flat who gave the keys for the flat and there was none else to look after that flat.
5. Thereafter, voluntary statements of (a) Shri Pratic Kumar Sen, Partner of M/s. Orient Transport Company; (b) Shri Balaram Behera, a Caretaker of a flat at Wood Street; (c) Shri P.C. Sanyal, Superintendent of State Trading Corporation; (d) Basanta Sen, of Orient Transport Company; (e) Subir Mazumdar, Car Driver of State Trading Corporation; (f) N.G. Mitra, Cargo Assistant of M/s. B.O.A.C; (g) Pradip Kumar Sen-gupta of M/s. Orient Transport Co.; (h) Shri S. Rangan, Station Assistant B.O.A.C.; (i) Shri T.P. Pal Choudhury, representative of State Trading Corporation of Sikkim - were recorded under Section 108 of the Customs Act, 1962 by the Competent Officers and investigation proceeded. Thereafter, His Highness Chogyal of Sikkim wrote a letter to Collector of Customs, Calcutta on 4-6-1973 requesting him to release the packages. A show cause notice dated 15-4-1974 was issued to the appellant and the State Trading Corporation of Sikkim and M/s. Orient Transport Company calling upon them to explain the matter in writing and to show cause why the Antiques seized should not be confiscated under Section 113(d) and (h) of the Customs Act, 1962 and why penal action should not be taken against them under Section 114(i) of the Customs Act, 1962 and that why the packages and the cases should not be confiscated under Section 118(b) of the C.A. 62. On the request of the appellant copies of the relevant statements were furnished to him and the Adjudication Proceedings were conducted and the learned Additional Collector confiscated the Bronze Nataraja Idol and its pedestal under Section 113(d) and (h) of the Customs Act, 1962 read with Section 4 of the Antiquities (Export Control) Act, 1947 and the packages were confiscated under Section 118(b) of the Customs Act, 1962 and imposed a penalty of Rs. 5,000.00 on the appellant. But, however, he exonerated the other two parties and the appellant's appeal to the Central Board of Excise and Customs was dismissed against which order the present appeal is directed.
6. The learned Advocate Shri N. Mookherjee appearing for the appellant contended that a question which goes to the root of the matter can be taken by the appellant before this Tribunal even though such a plea was not taken before the lower authorities. It was his contention that there is nothing in the Customs Act, 1962 which restricts this Tribunal to consider only the points received before the Departmental Authorities. In this connection he relied on a decision reported in Income Tax Reports, 1967, Volume LXVI, page-704 at page-713 (Commissioner of Income Tax v. Mahalakshmi Textile Mills). Hence the learned Advocate contended that the additional grounds raised by the appellant which were not specifically taken before the Departmental Authorities should be considered by this Tribunal. Those additional grounds according to him are that the Chogyal of Sikkim, during the relevant time was a sovereign ruler of a foreign state and that His Majesty as he then was and his representative of the State Trading Corporation of Sikkim, were not liable to be proceeded under the Customs Act, 1962 or under the Antiquities (Export Control) Act, 1947. It was, therefore, contended that there was documentary evidence to show that His Majesty Chogyal as he then was, was the owner of the Nataraja Idol and Pedestal in question and that they being under export to him in New York, was not liable to be confiscated. It was also his contention that in view of the provisions of Article 372(1) of the Constitution of India, the Antiquities (Export Control) Act, 1947 could not continue to operate after the enactment of Customs Act, 1962. It was, further, extended when the Chogyal of Sikkim became an ordinary citizen of India since the cession, of Sikkim within India, a show cause notice should have been issued to him and the confiscation of the goods without such a notice is bad in law.
7. It was further contended that principles of natural justice are violated in this case, inasmuch as the copies of statements of witnesses were not handed over to appellant and that he was not allowed to cross-examine the witnessess. The learned Advocate for appellant leaned heavily on the fact that the very show cause notice suffers from infirmity on the ground that the idol and pedestal were proposed to be confiscated under the Customs Act, 1962 read with Section 4 of the Antiquities (Export Control) Act, 1947; when in fact on the relevant date by virtue of Section 32(1) of the Antiquities and Treasure Act, 1972 (Act, 52/72), the Antiquities (Export Control) Act, 1947 was expressly repealed. It was his contention that the 1972 Act came into force on 11th September, 1972, whereas the show cause notice was issued on the 15th April, 1974 and as such the confiscation is bad in law. It was vehemently contended that since in terms of Article 372(1) of the Constitution, the Antiquities (Export Control) Act, 1947 was no more in force from 11-9-72 and hence the confiscation of the idol under the above Act is illegal.
8. The learned S.D.R., Shri M.N. Biswas contended before us that the idol and pedestal in question do not belong to the Chogyal at the relevant time. In this connection, he contended that there are several circumstances and statements of witnesses to show that the objects in question belong to the appellant. It was his contention that though Chogyal claimed two packages in question in the beginning before their opening, he never claimed it thereafter, once when it was found that the contents of those packages were the idol and pedestal in question. It was therefore, contended that these objects belonged to the appellant himself and that in the criminal proceedings the appellant pleaded guilty before the Judicial Authorities and he was accordingly convicted.
9. It was also contended by him that merely because the earlier Antiquities (Export Control) Act, 1947 was wrongly mentioned in the show cause notice and the same was made the basis for confiscation, that will not affect the validity of the order in question, since even in the amended Act (Antiquities and Treasure Act, 1972) the export of the idol and pedestal in question is an offence. It was, therefore, contended that a misquoting of the wrong Act has not prejudiced the appellant in any way and in this connection, he relied on a decision reported in 1978 (2) ELT (J 355). He also contended the copies of statements of the witnesses were furnished to the appellant and he never asked the authorities to give opportunity to cross-examine the witnesses and that there was no question of violation of principles of natural justice. It was also contended that the appellant himself was owner of the contraband articles and he was exporting it to Chogyal of Sikkim and the contravention of the provisions of the Act are established and orders of the authorities are justified.
10. In reply Shri Mookherjee contended the Chogyal of Sikkim was the owner of the articles in question and the Nataraja idol was his family deity and he was shipping it to New York for his own use. It was also contended that relying on the evidence of witnesses taken behind the back of appellant without giving an opportunity to examine them has clearly violated the principles of natural justice and thus the impugned order is liable to be set aside with consequential relief.
11. In view of the above rival contentions the following points arise for our determination.
(i) Whether the Chogyal of Sikkim is entitled for immunity from the Customs Laws and other law of the Government of India;
(ii) If so, whether the Nataraja Idol and Pedestal in question can be said to belong to his Highness, the then Chogyal of Sikkim;
(iii) Whether the principles of natural justice are violated in this case, thus rendering the impugned orders invalid;
(iv) Whether the show cause notice issued in the case is not in accordance with law and consequently the confiscation order is vitiated;
(v) Whether there are any grounds made out to interfere with the impugned order.
12. Point No. (i) : It was the contention of the learned Advocate, Shri Mookherjee appearing for the appellant that during the relevant time of seizure Sikkim was an independent state and under Article 372(1) of the Constitution of India, Sikkim became a part of Indian only from 26-4-75. It was therefore, his contention that the seizure in this case being prior to this date the Chogyal of Sikkim is entitled to immunity from the Indian Laws. In support of his contention he relied on a decision reported in 1949 (17) ITR - page-220 (Manaraj Bakram v. Province of Assam) wherein at page-229 their Lordships - Harries C.J. and Mukherjea J. of Calcutta High Court held as follows :
"In my view it is also clear that the Maharaja is an independent ruler and, therefore, not amenable to the ordinary jurisdiction of the Courts in India. International Law always gives to the ruler of an independent State certain privileges. In Hall's International law always gives to the ruler of an independent State certain privileges. In Hall's International Law, 8th Edition, at page-220, it is said :-
"A sovereign, while within foreign territory, possesses immunity from all local jurisdiction in so far and for so long as he is there in his capacity of a sovereign. He cannot be proceeded against either in ordinary or extraordinary civil or criminal tribunals, he is exempted from payment of all dues and taxes, he is not subject to police or other administrative regulations, his house cannot be entered into by the authorities of the State, and the members of his suite enjoy the same personal immunity as himself." Oppenheim in his book on international law, Vol. 1, Fifth Edition, at page-590, observes :-
"He (meaning a sovereign) must be granted so-called ex-territoriality conformably with the principle, par in parem non habet imperium, according to which one sovereign cannot have any power over another sovereign. He must, therefore, in every point be exempt from taxation, rating and every fiscal regulation and likewise from civil jurisdiction, except when he himself is the plaintiff." It is clear that an ambassador is exempt from taxation. Holland in his lectures on international law, at page-201, observes :-
"An ambassador is exempt from taxation and also from Customs dues; by right as to property held in his representative capacity and by courtesy as to property held otherwise. An sovereign and it is because the sovereign is exempt from taxation that such exemption is given to the ambassador."
It appears to me clear that a sovereign prince is not liable to taxation in another state."
13. It was, therefore, contended on the above-said analogy the Chogyal of Sikkim at the relevant time of seizure being the head of a Princely State was entitled to immunity from the Indian Laws. In the same decision again at page-230 their Lordships observed as follows "Indian Rulers and Rulers of States with similar powers to Indian rulers have always been regarded by courts in England as beyond their jurisdiction."
Again at page-231 their Lordships further observed - "It is clear, therefore, from these cases that English Courts have treated Indian Rulers as independent and entitled to the privileges granted to such rulers by international law."
It was also contended that though this point was not taken specifically before the Departmental Authorities this being a question affecting the jurisdiction of the proceedings themselves could be taken up even before this Tribunal as the appellant had raised this ground as additional ground by way of a separate application.
14. In this connection, reliance was placed on a decision reported in 1954-SCA-page-725 (Kiran Singh and Ors. v. Chaman Paswan and Ors.) wherein at page-728 the Supreme Court held as follows :
"It is a fundamental principle well-established that a decree passed by the Court without jurisdiction is a nullity and its invalidity could be set up whenever arid wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings." It is, thus, clear that a point questioning the very jurisdiction of the authorities to confiscate the idol of Nataraja idol and pedestal on the ground of immunity to the Chogyal of Sikkim can be raised even before this Tribunal for the first time, as the defect of jurisdiction over the subject matter of the action, strikes at the very authority of the Department to pass an order of confiscation."
15. Reliance was also placed on another decision reported in I.T.R.-1967-Volume-LXVI-page-710 (Commissioner of Income Tax v. Mahalakshmi Textile Mills) wherein at page-713 Supreme Court held as follows :
"Under Sub-section (4) of Section 33 of the Indian Income Tax Act, 1922, the Appellate Tribunal is competent to pass such orders on the ground "as it thinks fit". There is nothing in the income tax act which restricts the Tribunal to the determination of question raised before the Departmental Authorities. All questions whether of law or of fact which relate to the assessee may be raised before the Tribunal. If for reasons recorded by the Departmental Authorities in rejecting a contention raised by the Assessee, grant of relief to him on another ground is justified, it would be open to the Departmental Authorities and the Tribunal, and indeed they would be under duty, to grant that relief. The right of the assessee to relief is not restricted to the plea realised by him."
The above-said decision of the Supreme Court is applicable to this Tribunal also. Section 33 of the Income Tax Act and Section 129P of the Customs Act, 1962 are para materia with each other. Even under Section 129B of the Customs Act, 1962 this Tribunal after hearing the parties may pass such orders "as the Appellate Tribunal may think fit" as stated in the above section. In such circumstances, even if the parties have not raised a point if the Tribunal thinks that such a relief can be granted to the party it becomes the duty of the Tribunal to grant such relief. Hence the appellant is entitled to raise this point and accordingly, we hold.that the Chogyal of Sikkim at the relevant point of time i.e. during 1973 was entitled to immunity from Customs Laws if it is shown that the Nataraja idol with pedestal was his property and that he was exporting it to New York. Hence it takes us to the second point for determination as to whether it was his Highness the Chogyal of Sikkim who was the owner of goods at the relevant time of its seizure and if so whether the immunity can be extended to him even though the Adjudication Proceedings were even at a time when he became an ordinary citizen of India by virtue of Sik-kims cession with India.
16. Point No. (ii) : As far as this point is concerned the Learned Advocate Shri N. Mookherjee appearing for the appellant strenuously contended that the Chogyal of Sikkim was the owner of goods (Nataraja idol and pedestal) during the relevant point of time. Alternatively, it was his contention that even assuming that the adjudication was done after the date of cession of Sikkim with the Indian Union, and at a time when the Chogyal had become an ordinary citizen of India, still the confiscation of the idol and pedestal is illegal as no show cause notice was given to the Chogyal, before its confiscation. Let us therefore advert ourselves to the most crucial point for determination of this appeal to the effect as to whether there are materials available to come to the conclusion that the Chogyal was the owner of the idol and pedestal seized in this case. In this connection, our attention was drawn to a letter dated 15th March, 1973 written by one, Shri Palchowdhury to the representative of State Trading Corporation of Sikkim. It was mentioned in that letter dated 15-3-1973 that A.D.C. of Chogyal, Shri Bharat Singh had left Darjeeling Mail with the packages which are the personal effects of his Highness the Chogyal of Sikkim. It was also mentioned in that letter that they are required to be air freighted to New York to his Majesty as per the New York address mentioned therein. It was, therefore, contended by the learned Advocate that these two packages which were brought by A.D.C, Shri Bharat Singh reached Calcutta somewhere on 16th or 17th March, 1973 and they were stored at the Chogyal's flat at No. 4, Wood Street, Calcutta. He also contended that these two boxes were opened by the Customs Authorities, and the Nataraja idol and pedestal were found in these boxes and therefore, he contended that the goods in question belonged to the Chogyal of Sikkim.
17. The Learned Advocate, Shri N. Mookherjee placed heavy reliance on the letter written by Chogyal of Sikkim dated 4th June, 1976, to the Collector of Customs, Calcutta wherein it was stated that the two packages (unaccompanied diplomatic baggage containing personal effects under B.O.A.C., A.W. No. 061-11947854 dated 22-3-1973) contained his personal effects and it may be handed over to the representative State Trading Corporation for onward transmission to Gangtok. Therefore, it was contended that the Chogyal of Sikkim himself had claimed these two packages as belonging to him. But as against these claims the learned S.D.R., Shri M.N. Biswas brought to our notice the statements of witnesses and other circumstances appearing in this case.
18. In the first instance, the foundation laid out for claiming these two packages is the first letter written by Shri Palchowdhury dated 15th March, 1973. But Shri Palchowdhury was examined by Customs Authorities on 14-12-1973 wherein he disclaimed any knowledge about these two packages. He stated that appellant being his boss he signed that letter dating it as 15-3-1973 as appellant told him that he was in trouble of smuggling the same. He also stated that as per appellants' direction he endorsed a copy of it to the under-secretary of Chogyal. He also stated that thereafter he demanded back this letter and appellant postponed it on some pretext or other and never returned it to him. Therefore, this letter dated 15-3-1973 is contradicted by its own author and there is no reason to doubt the veracity of this statement as it is corroborated by other statements and circumstances in this case.
19. The statement of Shri Subir Mazumdar, an employee under the appellant, who was also driving his car assumes great importance in this case. The appellant himself in his statement dated 21-6-1973 stated as follows :
"These packages were brought by the A.D.C. of the Chogyal in Calcutta sometimes on 16th or 17th March, 1973. He came by Darjeeling Mail.... I recollect that my driver Shri Subir Mazumdar was sent to bring the packages from Sealdah Station with my ambassador car."
He also stated that from these packages the Nataraja Idol and Pedestal were recovered. But this statement of appellant is contradicted by his driver Subir Mazumdar who stated in his statement dated 11-6-1973 that when he went to receive Bharat Singh when he came by Darjeeling Mail during March, 1973 he had brought only 4 or 5 small packages which were taken to 4B, Wood Street, and the lift man Balaraj carried them to the room. He also stated that none of these packages were packed by olive green cloth. When he was shown these two packages in question he denied of having seen them as the same packages which were brought by Shri Bharat Singh.
20. Shri Balaram Behera, the lift boy of 4B, Wood Sreet also had given statement under Section 108 of the Customs Act, 1962 to the Customs House Officers, which is as follows :-
"It is not a fact that two packages (wooden) cases wrapped in green tarpaulin cover were stored in the flat during the last March, 1973. It is also not a fact that Mr. Mohan Samtani Phoned asking me to deliver the said wooden cases to his driver and Basana; the peon sometime in February/March, 1973. No such wooden cases were stored in the flat."
Hence the statement of S/Shri Palchowdhury, Mazumdar and Balaram Behera falsifies the claim and statement of appellant that these two packages were got by A.D.C. Bharat Singh as the belongings of the Chogyal of Sikkim. There is nothing to show that these witnesses have any animosity with appellant. Appellant himself gave a statement that his driver Mazumdar left his services of his own accord. If he had dismissed him, at least he could have contended that due to that fact he is hostile to him. But that is not the case here. These statements clearly go to show that these two packages and the Nataraja idol and pedestal in them do not belong to Chogyal of Sikkim.
21. In the Shipping Bill in question dated 6-1-1973 in the column for description of goods i.e. these two packages the appellant mentioned as follows :-
"Unaccompanied personal effects of His Majesty the Chogyal P.T. Namgyal of Sikkim; Books etc.; (does not contain arm, ammunition, antiques, rationed articles or any other item which is restricted.)"
But the appellant in his statement again stated as follows :
"In regard to these two packages I have made a declaration in the shipping bills as the representative of the State Trading Corporation of Sikkim as well as I have issued a certificate that the subject packing contains the personal effects viz. Books etc. of H.M. Chogyal of Sikkim, but I do not know the actual contents of the packages. I cannot say whether there are books at all inside the packages. I issued certificate without personally knowing the contents thereof."
This statement of the appellant is highly contradictory.
If he does not know the contents of the packages he would have simply certified them as the personal belongings of Chogyal. There was no occasion for him then to certify that it contains books and does not contain arms, ammunition, antiques etc. This goes to show that he knows its contents as antiques and he suppressed it by declaring that it does not contain antiques and used the name of the Chogyal of Sikkim, in a clever manner, and tried to shield him by inventing several theories and by manufacturing the letter dated 15th March, 1973 as stated by Shri Palchoudhury. But in the process of telling these lies the truth has come out that these two packages belong to him and he was exporting it by using the name of Chogyal of Sikkim. That is why, even though Chogyal of Sikkim claimed two packages as belonging to him in the first instance, by his letter dated 4-6-1983 he never claimed it later till this day when it was found on 8-6-1983 that these two packages contained the Nataraja idol and pedestal in question. It is, therefore, obvious that the Chogyal of Sikkim might have claimed some other packages thinking that those were the packages under seizure. Otherwise, having staked a claim for the packages on 4-6-1983 he should have contain his claim thereafter also as he enjoys immunity from Indian Laws. The very fact that thereafter he never claimed these two packages after their opening, goes to show that after knowing their identity he has disclaimed them. It is significant to note that it is the appellant, who is stating that the Chogyal of Sikkim is its owner, whereas the Chogyal from 8-6-1983 till this date has not made any claim over it after their opening. This is another circumstance which disproves the theory that these packages belong to the Chogyal of Sikkim. Accordingly, we answer the second point by holding that these two packages including the idol and its pedestal do not belong to his Highness the Chogyal of Sikkim and no question of claiming any immunity from Indian laws, arise in the circumstances of this case. That being the position there is no necessity for us to decide the question that since the adjudication proceedings culminated after Sikkim became part of India, whether the Chogyal was still entitled to claim that benefit of immunity. Point No. (ii) is answered accordingly.
22. Point No. (iii): The next limb of argument as canvassed by the learned Advocate Shri Mookherjee is that the principles of natural justice are violated in this case as the documents are not supplied and appellant was not given an opportunity to cross-examine the witnesses, whose statements were relied on by the Adjudicating Authority. But it is seen from the order that the copies of all the statements relied on were furnished to the appellant and he was afforded with an opportunity to inspect the documents. The appellant thereafter wanted the report of experts opinion about valuation of Nataraja idol and that was also furnished to appellant. Hence all the documents were furnished to him. On the request of appellant, the personal hearing was also adjourned on several dates as could be seen from the adjudication order and finally it was posted to 21-11-80. Again the appellant sought for an adjournment and it was stated by him in his letter dated 24-11-80 that the case may be adjudicated on the basis of submission already made by him and the case was decided accordingly. Therefore the copies of documents were furnished to him and opportunity was also granted to him. At no time, did he seek for the cross-examination of any of the witnesses and it does not now lie in the mouth of the appellant to contend that he was denied of the opportunity to cross-examine the witnesses. The copies of statements having been supplied to him and in the absence of any request by him to give opportunity to cross-examine any witnesses, it cannot be said that there is any violation of the principles of natural justice. On the contrary the appellant himself submitted in the reply to show cause notice as well as before the Board that he pleaded guilty to the charges, in this connection, before criminal court and he was convicted accordingly. This goes to show that he himself pleaded guilty to the charges of smuggling the antiquities out of India and this admission is the best piece of evidence against him to prove his guilt. The argument of the learned advocate that he was tempted to plead guilty by the authorities has no force. After all, appellant is a highly educated person with a good status in life and it is not his case that he was coerced or threatened. He cannot thus be allowed to blow hot and cold at the same time. Thus it is clear that there is no violation of the principles of natural justice and Point No. (iii) is decided accordingly.
23. Point No. (iv) : It was strenuously argued before us by the learned Advocate for appellant that the show cause notice has an infirmity on the ground that the idol and pedestal were proposed to be confiscated under the Customs Act, 1962 read with Section 4 of the Antiquities (Export Control) Act, 1947. When, in fact, on the relevant date by virtue of Section 32(1) of the Antiquities and Treasures Act, 1947 (Act 52/72), the Antiquities (Export Control) Act, 1947 was expressly repealed. It was his contention that the 1972 Act came into force on 11th September, 1972, whereas the show cause notice was issued on 15th April, 1974 and as such the confiscation is bad in law. It was vehemently contended that since in terms of Article 372(1) of the Constitution, the Antiquities (Export Control) Act, 1947 was no more in force from 11-9-1972 and hence the confiscation of the idol under the above Act is illegal.
24. In this connection, we have to look into the provisions of the above-said Act before and after the amendment to Section 3 of the Antiquities (Export Control) Act (XXXI of 1947) which reads as follows :
"No person shall export any antiquity except under the authority of a licence granted by the Central Government."
The above-said Act was repealed by the Antiquities and Treasures Act, 1972 which came into force from 11-9-1972. Section 3 of the above Act reads as follows :-
"Regulation of Export Trade in Antiquities and Art Treasures. - (1) On and from the commencement of this Act, it shall not be lawful for any person, other than the Central Government or any authority or agency authorised by the Central Government in this behalf, to export any antiquity or art treasure;
(2) Whenever the Central Government or any authority or agency referred to in Sub-section (1) intends to export any antiquity or art treasure such export shall be made only under and in accordance with the terms and conditions of a permit issued for the purpose by such authority as may be prescribed."
25. It thus is seen that both under the 1947 Act as well as 1972 Act the export of antiquity is not lawful. If the same is made by any person under the 1947 Act a person can export it only under the authority of a licence. But under the 1972 Act it shall not be lawful for any person to export antiquity, and it is only the Central Government or any authority or agency authorised by the Central Government who can export the same, that too, in accordance with the terms and conditions of a permit issued for the purpose by the prescribed authority. Therefore, the Act of 1972 is stricter as it totally prohibits the export of antiquity by any person. In such circumstances, merely because the wrong Act was quoted in the show cause notice there is no prejudice caused to the appellant, for the simple reason that under both the Acts the export of antiquity is prohibited. It is not the case of the appellant that he has any licence in this behalf as prescribed under Section 3 of the 1947 Act. In such circumstances, the decision reported in 1978 (2) ELT (J 355p.) (in the case of J.K. Steel Ltd. v. Union of India) becomes relevant it is held in the above decision, by the Supreme Court as follows :
"If the exercise of a power can be traced to a legitimate source, the fact that the same was purported to have been exercised under a different power does not vitiate the exercise of power in question. This is a well-settled proposition of law.... The incorrect statement in the written demand could not have prejudiced the assessee. From his reply to the demand it is clear that he knew as to the nature of the demand."
Applying the above principles to the facts of this case it is clear that the appellant knew about the real allegation made in show cause notice to the effect that it is with respect to his attempt to export antiquities out of India which is an offence under the 1947 Act as well as 1972 Act and no prejudice is caused to him in any way. A mere mis-quoting the Act as Antiquities (Export Control) Act, 1947, instead of quoting as Antiquities and Treasure Act, 1972, does not vitiate the order in question.
26. In such circumstances, we are of the opinion that on this ground no prejudice is caused to the appellant and it cannot be said that the show cause notice is invalid on account of this fact, and more particularly, in view of the fact that the appellant himself pleaded guilty to the charges before the learned Magistrate, under the latter Act. Hence Point No. (iv) is held accordingly and we do not see any cogent reason for taking a different view in this regard as was canvassed by the learned advocate for the appellant.
27. Point No. (v): In view of the above findings which we have arrived at on Point Nos. (i) to (iv) we find that no grounds are made out to interfere with the impugned order. The imposition of the penalty of Rs. 50,000.00 in the circumstances of the case cannot be said to be in any way severe. Accordingly, we dismiss this appeal as being one without any merits.