M.C. Jain, C.J.
(1) Heard Learned Counsel for the parties. Rule D B.
(2) On account of mis-description of the goods, the Addl. Collector of Customs confiscated the goods by his order dated 22.6.89 although an option was given to the petitioner to re-export the same on redemption fine of Rs. 10.000.00 . He further imposed a penalty of Rs. 10,000.00 upon the Thai Airways u/s 112 of the Customs Act.
(3) Counsel for the respondents submitted that the petitioner ought to have preferred an appeal against the order of the Addl. Collector of Customs and without exhaustion of such remedy, the petitioner should not have approach- fed this Court. The petitioner''s contention is that the order of confiscation itself js bad as the goods were bound for Kabul. For the purposes of trans-shipment, if the goods are imported, then there is no liability of payment of any duty, and without payment of duty, the goods should be allowed to be trans-shipped to Kabul. The respondents'' case is that in the case of. trans-Shipment u/s 54, provisions of Section 11 would be attracted as sub-Section (2) of Section 54 provides that where any goods in Customs Port are meant for transshipment to any port outside India, such goods are allowed to be trans-shipped without payment of duty but it is subject to provisions of Section 11 and according to the learned counsel for the respondent clause (o) of sub-Section (2) of Section 11 would be attracted. Section 11 provides that if the Central Government is satisfied that it is necessary so to do for any of the purposes specified in sub-Section (2), it may, by notification in the Official Gazette, prohibit either absolutely or subject to such conditions as may be specified in the notification the import or export of goods of any specified description. The purposes referred to in sub-Section (1) are specified in sub-Section (2) and clause (o) deals with the purpose of prevention of deceptive practices.
(4) It is clearly a case which is covered u/s 54. The provisions of sub-Section (2) of Section 54 are subject to provisions of Section 11 but for attracting Section 11, there should be notification issued by the Central Government in the Official Gazette. We have not been referred to any notification under sub-Section (1) of Section 11. Besides that, it cannot be said that any deceptive practice was adopted in the present case. One of the purposes specified is the prevention of deceptive practices. The description of the goods given in the present case is "Footwear and make-up". In some of the packages was ''Charlie Cologne Spray''. It may be that it was taken as an item of ''make-up''. So, in our opinion, the present case is not covered under clause (o) of sub-Section (2) of Section 11. It is true that the impugned order was an appealable one. Normally, the petitioner should have exhausted the statutory remedy available in law. But having regard to the facts of the present case, where the order of confiscation is not sustainable in law, we think improper to invoke our extraordinary jurisdiction. Accordingly, this writ petition is allowed. The impugned order of the Addl. Collector of Customs is set aside and the respondents are directed to release the goods within two weeks to be trans-shipped to Kabul.
