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REGISTERED No. D-(D)-72

The Gazette of India

EXTRAORDINARY

PART II-Section 1

PUBLISHED BY AUTHORITY

No. 74] NEW DELHI, TUESDAY. NOVEMBER 4, 1975/KARTIKA 13, 1897

Separate paging la given to this Part in order that it may be filed

as a separate compilation

MINISTRY OF LAW, JUSTICE AND COMPANY AFFAIRS

(Legislative Department)

New Delhi, the 4th November. 1975/Kartika 13, 1897 (Saka)

THE IMPORTS AND EXPORTS (CONTROL) AMENDMENT

ORDINANCE, 1975

No. 19 OF 1975

Promulgated by the President in the Twenty-sixth Year of the Republic of India. An Ordinance further to amend the Imports and Exports (Control) Act. 1047

WHEREAS Parliament is not in session and the President is satisfied that circumstances exist which render it necessary for him to take imme- diate action;

Now, THEREFORE, in exercise of the powers conferred by clause (1) of article 123 of the Constitution, the President is pleased to promulgate the following Ordinance: —

1. (1) This Ordinance may be called the Imports and Exports (Control)

Amendment Ordinance, 1975.

Short title and com- mence- ment.

(2) It shall come into force¹ at once.

Act 18 of 1947 to be temporari- ly amend 2. During the period of operation of this Ordinance, the Imports and Exports (Control) Act, 1947 (hereinafter referred to as the principal Act) shall have effect subject to the amendments specified in sections 3 to 7 (both inclusive),

(697)

3. For section 2 of the principal Act, the following section shall be substituted, namely: —

Substitu- tion of new sec- tion for sec- tion 2.

'2. In this Act, unless the context otherwise requjre3,—

Defini- tions,

(jp,y adjudicating authority" means the authority specified in, or under, section 4K;

(b) "Appellate authority" means the Appellate authority referred to in section 4M;

(c) "Chief Controller" means the Chief Controller of Imports and Exports;

(d) "control order" means a control order made, or deemed to have been made, under this Act;

(e) "customs station" has the meaning assigned to it in the

52 of 1962.

Customs Act, 1962;

(f): "Deputy Chief Controller" means a Deputy Chief Con- troller of Imports and Exports;

(g) "import" and "export" mean, respectively, bringing into, and taking out of, India by sea, land or air;

(h) "letter of authority" means a letter authorising the licensee to' permit another person, named in the said letter, to import goods against the licence granted to the licensee;

(i) "licence" means a licence granted, and includes a customs clearance permit issued under any control order;

(j) "prescribed" means prescribed by rules made under this Act;

(7c) "recognised agency" means an agency to which the func- tions o,f distribution of imported goods have been assigned by the Chief Controller.'.

4. After section 4A of the principal Act, the following sections shall be inserted, namely:—•

Insertion of new sections 4B to 4P.

Power to enter and inspect.

'4B. Any person authorised in writing in this behalf by the Chief Controller or any officer serving under him, not being an officer below the rank of a Deputy Chief Controller (hereafter in this Act called the "authorised person"), may enter, at any reason- able time, any premises in which—

(i) any imported goods or materials which are liable to confiscation under this Act, or

(ii) any books of account or other documents or things which, in his opinion, will be useful for, or relevant to, any proceeding under this Act,

are suspected to have been kept or concealed, and inspect such goods, materials, books of account, other documents or things and may take such notes or extracts from such books of account or other documents as he may think fit.

4C. If the authorised person has any reason to believe that— Power W

search.

(i) any imported goods or materials liable to confiscation

under this Act, or

(ii) any books of account or other documents or things Which, in his opinion, will be useful for, or relevant to, any pro- ceeding under this Act,

are secreted in any place, he may enter into ariii search such place' or premises for such imported goods, materials, documents or things;

Power id ieize imported goods or material^.

4D. (1) If the authorised person has any reason to believe that any imported goods or materials are liable to confiscation under this Act, lie may seize such goods or materials together with, the pack- age, covering or receptacle, if any, iii which such goods or materials are found, and where such goods or materials are found to have been mixed with any other goods or materials, he may seize such goods or materials together with the goods or materials with which they are so mixed:

Provided that where it is not practicable to seize any such goods or materials, the authorised person may serve on the owner of the goods or materials an order that he shall not remove, part with or otherwise deal with, the goods or materials except with the previ- ous permission of such authorised person.

(2) Where any goods or materials are seized under sub-section (1) and no notice in respect thereof is given under section 4L within six months of the seizure of the goods or materials, the goods or materials shall be returned to the person from whose possession they were seized:

Provided that the aforesaid period of six months may, on suffi- cient cause being shown, be extended by the Chief Controller by a further period not exceeding six months.

(3) The authorised person may seize any documents or things which, in his opinion, will be useful for, or relevant to, any proceed- ing under this Act.

(4) The person from whose custody any documents are seized under sub-section (3) shall be entitled to make copies thereof or take extracts therefrom in the presence of the authorised person.

(5) If any person legally entitled to the documents or other things seized under sub-section (3) objects, for any reason, to the retention by the authorised person of the documents or things, he may make an application to the Central Government stating therein thei reasons for such objection and requesting for the return of the documents or things.

(6) On receipt of an application under sub-section (5), the Cen-

tral Government may, after giving the applicant an opportunity of being heard, pass such order as it may think fit.

(7) Where any document—

(a) is produced or furnished by any person or has been seized from the custody or control of any person under this Act or any other law for the time being in force, or

(b) has been received from any place outside India (duly authenticated by such authority or person and in such manner as may be prescribed) in, the course of the investigation of any offence alleged to have been committed by any person against this Act,

mid such document is tendered in evidence against the person by whom it is produced or from whom it was seized or against such person and any other person who is jointly tried, or proceeded against, with him, the Court, or, as the case may be, the adjudicat- ing authority "shall, notwithstanding anything to the contrary con- tained in any other law for the time being in force,—

(i) presume, unless the contrary.is proved, that the signature and every o+her part of such document which purports to be in the handwriting of any particular person or which the court or the adjudicating authority may reasonably assume to have been sighed by, or to be in the handwriting of, any particular person, •is under that person's handwriting, and. in the case of a docu- ment executed or attested, it was executed or attested by the person by whom it purports to have been so executed or attested; (ii) admit the document in evidence notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence.

Power to stop and seize con- veyances.

4E. Any authorised person may, if he has any reason to suspect that any conveyance or animal is being, or is about to be, used for the transportation of any imported goods or materials which are liable to confiscation under this Act and that by such transportation any provision of this Act has been, is being, or is about to be, con- travened, at any lime stop such conveyance or animal or, in the case of an aircraft, compel it to land, and

(a) rummage and search the conveyance or any part thereof, (6) exanrne and search any goods or materials in the con- veyance or on the animal,

(c) if it becomes necessary to stop any conveyance or ani- mal, he may use all lawful means for stopping it and where such means fail, the conveyance or animal may be fired upon,

and where he is satisfied that it is necessary so to do to prevent the contravention of any provision of this Act or of any control order or condition of any licence or letter of authority, he may seize such conveyance or animal.

Explanation.—Any reference in this section to a conveyance shall, unless the context otherwise requires, be construed as includ- ing a reference to an aircraft, vehicle or vessel.

4F. The provisions of the Code of Criminal Procedure, 1973, re- 2 of 1974.

lating to searches and seizures, shall, so far as may be, apply to every search or seizure made under this Act.

Search and seizure to be made in accord- ance with the Code of Crimi- nal Proce- dure, 1973.

4G. Any imported goods or materials in respect of which— Confisca-

tion.

\a) any condition 01 xne licence or leuer 01 autnomy, unaer which they were imported, relating to the utilisation or distri- bution of such goods or materials, or

(b) any condition relating to the utilisation or distribution of such goods or materials subject to which they were received from, or thiough, a recognised agency, or

(c) any direction given under a control order with regard

to the sale of such goods or materials,

has been, is being, or is attempted to be, contravened, shall, together with any package, covering or receptacle in which such goods are found, be liable to confiscation, and, where such goods or materials are so mixed wilh any other goods or materials that they cannot be readily separated, such other goods or materials shall also be liable to confiscation:

Provided that where it is established to the satisfaction of the adjudicating authority that any goods or materials, which are liable to confiscation under this Act, had been imported for personal use, and not for any trade or industry, and that they belong to a person other than the person who has, by any act or omission, rendered them liable to confiscation, and such act or omission was without the knowledge or connivance of the person to whom they belong, such goods or materials shall not be ordered to be confiscated; but such other action as is authorised by this Act may be taken against the person who has, by such act or omission, rendered such goods or materials liable to confiscation.

Confisca- tion of convey- ance.

4H. Any conveyance or animal which has been, is being, or is at- tempted to be, used for the transport of any imported goods or mate- rials which are liable to confiscation under this Act, shall be liable to confiscation unless the owner of the conveyance or animal proves that it was, is being, or is about to be, so used without the know- ledge or connivance of the owner himself, his agent, if any, and the person in charge of the conveyance or animal and that each of them had taken all reasonable precautions against such use:

Provided that in the case of a conveyance or animal used for the transport of goods or passengers for hire, the owner of the con- veyance or animal shall be given an option to pay, in lieu of confisca- tion of the conveyance or animal, a fine not exceeding the value of the imported goods or materials which have been, are being, or attempted to be, transported by such conveyance.

4-1. (1) Any person who,— Liability

to penalty.

(a) in relation to any goods or materials which have been imported under any licence or letter of authority, uses or utilises such goods or materials otherwise than in accordance with the conditions of such licence or letter of authority; or

(fa) being a person to whom any imported goods or materials have been delivered by a recognised agency, uses or utilises auch

goods or materials or causes them to be used or utilised, for any purpose other than the purpose for which they were delivered to him; or

(c) having made a declaration for the purpose of obtaining—

(i) a licence or letter of authority to import any goods

or materials, or

(ii) any amendment Of such licence or letter of authority,

or

(Hi) allotment of any imported goods or materials)

ife found to nave made in such declaration, any statement which is incorrect or false in material particulars; or

(d) acquires, sells or otherwise parts with, or agrees to acquire, sell or otherwise part with, any imported goods or mjirterials in contravention of the conditions of any licence or letter of authority in pursuance of which such goods or mate- rials had been imported; or

(e) acquires, sells or otherwise parts with, or agrees to acquire, sell or otherwise part with, any imported goods or mate- rials in contravention of the terms of any allotment made by any recognised agency; or

(/) contravenes any direction given under a control order with regard to the sale of goods or materials which have been imported under any licence or letter of authority or which have been received from, or through, a recognised agency,

shall be liable to a penalty not exceeding five times the value of the goods or materials, or one thousand rupees, whichever is more, whether or not such goods or materials have been confiscated or are available for confiscation.

52 of 1962.

Explanation.—For the purposes of this section, "value" has the meaning assigned to it in sub-section (1) of section 14 of the Cus- toms Act, 1962.

(2) If any person abets the commission of any act or omission, which act or omission would render any person liable to a penalty under sub-section (1), or attempts to commit any act aforesaid, the person so abetting or attempting shall be liable to a penalty not exceeding five times the value of the goods or* materials in respect of which such abetment or attempt has been made, or one thousand rupees, whichever is more, whether or not such goods have been confiscated or are available for confiscation.

(3) A penalty imposed under sub-section (1) or sub-section (2)

may, if it is not paid, be recovered as an arrear of land revenue:

Provided that the adjudicating authority may, by order, attach any money belonging to, or owed to, the person on whom any penalty has been imposed under sub-section (1) or sub-section (2), and such attachment shall be made in the same manner in which an attach- ment is made by a civil court.

4J. No confiscation made or penalty imposed under this Act shall prevent the infliction of any other punishment to which the person affected thereby is liable under the provisions of this Act or under any other law for the time being in force.

Confisca- tion or penalty not to Interfere with other punish, ments.

4K. Any confiscation may be adjudged or penalty may be im- Adjudica- tion.

posed under this Act,—

(a) by the Chief Controller, or, where he so directs, by a general or special order, by the Additional Chief Controller;

(b) subject to fuch limits as may be specified in this behalf, by such other officer not below the rank of a Deputy Chief Con- troller, as the Central Government may, by notification in the Official Gazette, authorise in this behalf.

4L. No order of adjudication of confiscation or imposing a penalty shall be made unless the owner of the goods, materials, conveyance or animal, or other person concerned, is given a notice in writing—

Giving of opportu- nity to the owner of goods, etc. (i) informing him of the grounds on which it is proposed to confiscate such goods, materials, conveyance or animal or to impose a penalty;

(ii) giving him a reasonable opportunity of making a repre- sentation in writing within such reasonable time as may be specified in the notice against the confiscation or imposition of penalty mentioned therein, and, if he so desires, of being heard in the matter.

4M. (1) Any person aggrieved by any decision or order rnade Appeal.

under this Act may prefer an appeal,—

(a) where the decision or order has been made by the Chief Controller or Additional Chief Controller, to the Central Govern- ment;

(b) where the decision or order has been made by any officer below the rank of the Additional Chief Controller, to the Chief Controller or where he so directs, to the Additional Chief Con- troller,

within a period of forty-five days from the date on which the order is served on such person:

Provided that the Appellate authority may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the aforesaid period of forty-five davs, allow such appeal to be preferred within a further period of forty-five days:

Provided further that in the case of an appeal against an order imposing a penalty, no such appeal shall be entertained unless the amount of the penalty has been deposited by the appellant:

Provided also that, where the Appellate authority is of opinion that the deposit to be made will cause undue hardship to the appel- lant, it may, at its discretion, dispense with such deposit either un- conditionally or subject to such conditions as it may impose.

(2) The Appellate authority may, atter giving to the appellant a reasonable opportunity of bfvng heard, if he so desires, and after making such further inquiries, if any, as it may consider necessary, pass such orders as it thinks fit, confirming, modifying or reversing the decision or order aocealed against, or may send back the case, with such directions as it mav th'nk fit, for a fresh adjudication or decision, as the case may bo, after taking additional evidence, if necessary:

Provided that an order enhancing or imposing a penalty or con- fiscating goods or materials of a greater value shall not be made under this section unless the appellant has had an opportunity of making a representation, and, if he so desires, of being heard in his defence.

Powers of revision of the Chief Con- troller.

4N\ The Chief Controller may, on his own motion or otherwise, call for and examine the records of any proceeding in which an order of adjudication of confiscation or imposing any penalty has been made by any officer subordinate to him and against which no appeal has been preferred, for the purpose of satisfying himself as to the correctness, legality or propriety of such order or decision and pass such orders thereon as he may think fit:

Provided that no decision or order shall be varied under this section so as to prejudicially affect any person unless such person—

(a) has, within a period of two years from the date of such decision or order, received a notice to show cause why¹ such deci- sion or order shall not be varied, and

(b) has been given a reasonable opportunity of making representation and, if he so desires, of being heard, in his defence.

5 of 1908. 4-0. (1) Every authority making any adjudication or'hearing any appeal or exercising any powers of revision under this Act shall have all the powers of a civil court under the Code of Civil Proce- dure, 1908, while trying a suit, in respect of the following matters, namely: —

Power of adjudica- ting and other authori- ties.

(a) summoning and enforcing the attendance of witnesses;

(b) reouiring the discovery and production of any) document;

(c) requisitioning any public record or copy thereof from any court or office;

(d) receiving evidence on affidavits; and

(e) issuing commissions for the examination of witnesses or documents.

(2) Every authority making any adjudication or hearing any appeal or exercising any powers of revision under this Act shall be deemed to be a civil court for the purposes of sections 345 and 346 of the Code of Criminal Procedure, 1973.

2 of 1974,

(3) Every authority making any adjudication or hearing any appeal or exercising any powers of revision under this Act shall have the power to make such orders of an interim nature as it may

think lit and may also, for sufficient cause, order the stay of ope- ration of any decision or order.

4P. (I) Where a penalty has been imposed by the adjudicating

officer and—

(a) no appeal against the order imposing such penalty has been preferred to the Appellate authority and the person entitled to file such appeal dies or is adjudicated an insolvent before the expiry of the period within which the appeal can ba preferred, or

Continu- ance of proceed- ings in the event of death or insol- vency.

(b) an appeal has been preferred to the Appellate authority against the order imposing such penalty but the appellant dias or is adjudicated an insolvent during the pendency of the appeal,

then, it shall be lawful lor the legal representatives of such person or the Official Assignee or the Official Receiver, as the case may be, to prefer an appeal to the Appellate authority, or, as the case may be, to continue the appeal before the Appellate authority, in place of such person and the provisions of section 4M shall, so far as may be, apply or continue to apply to such appeal.

:i ai 1909. 5 of 1920.

(2) The powers of the Official Assignee or the Official Receiver under sub-section (1) shall be exercised by him subject to the provisions of the Presidency Towns Insolvency Act, 1909, or the Provincial Insolvency Act, 1920, as the case may be.'.

5. In section 5 of the principal Act,— Amend- ment of section 5.

(i) after the words "any condition of a licence granted under any such order", the words "or any authority under which imported goods were received from or through a recognised agency" shall be inserted;

f (ii) for the words "be punishable with imprisonment for a term

which may extend to two years and also with fine:", the words—

"be punishable,—

(a) where the value of the goods, in relation to which such contravention or attempted contravention or abetment of contra- vention has been made, exceeds ten lakh rupees, with imprison- ment for a term which may extend to seven years and also with fine, and

(b) in any other case, with imprisonment for a term which

may extend to three years and also with fine:"

shall be substituted.

6. After section 5 of the principal Act, the following sections shall be

inserted, namely: —

"5A. If any person fails to pay the penalty imposed by the ad- judicating officer or the Appellate authority or fails to comply with any direction or order made, or deemed to have been made, under this Act, he shall, upon conviction by a court, be punishable with imprison- ment for a term which may extend to two years, or with fine, or with both.

Insertion of new- sections 5A and 5B. Penalty for con- travention of order made by adjudica- ting officer and Appellate autho- rity.

5B. Clerical or arithmetical mistakes in any decision or order, or Correction of clerical or arith- metical mistakes.

errors arising therein irom any accidental slip or omission may, at any time, be corrected by the authority by which the decision or order was made either on its own motion or on the application of the aggrieved person:

Provided that where any correction proposed to be made under this section will have the effect of prejudicially affecting any person, no such correction shall be made except after giving to that person a reasonable opportunity of making a representation in the matter and no such correction shall be made after the expiry of a period of two years from the date on which such decision or order was made.".

7. After section 7 of the principal Act, the following section shall be inserted, namely: —

"&. (1) The Central Government may, by notification in the Offi- cial Gazette, make rules for carrying out the provisions of this Act. Insertion of new section 8. Power to make rules.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely: —

(a) the person by whom, and the manner in which, any docu- ment received from a place outside India shall be authenticated,

(b) any other matter which is required to be, or may be, prescribed.

(3) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, bafore each House of Parliament, while it is in session for a total period of thirty day^ which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the ses- sion or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modi- fied form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.".

FAKHRUDDIN ALT AHMED,

President.