TMI Blog2017 (2) TMI 961X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Bills of Entry declared the goods to be Baby Diapers and the Proper Officer also cleared the goods for home consumption u/s 47(1), it may not be possible for the Department later on to contend that cigarettes concealed in Baby Diapers could have been imported and taken into the market. The 2nd respondent could not have invoked the jurisdiction under Section 28(4) in respect of the past containers. If this is permitted, it would become a matter of surmises for any officer to claim that some goods could have been smuggled into the country by concealing them behind the goods that were declared to be the goods of import in the Bills of Entry. Hence, the Orders-in- Original impugned in these writ petitions are liable to be set aside only insofar as they impose a duty, interest and penalty in respect of the past 13 containers. Petition disposed off - decided partly in favor of petitioner - the petitioners will have to avail the alternative remedies available to them in law. - Writ Petition Nos. 30792-30793 of 2016 - - - Dated:- 13-12-2016 - SRI JUSTICE V.RAMASUBRAMANIAN AND SRI JUSTICE G. SHYAM PRASAD, JJ. For The Petitioner : Sri S.Ravi, Senior Counsel and Sri V.Gopa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioners have bypassed the alternative remedy of appeal, on the short ground that they were not the importers of the goods and that the impugned orders have been passed only on the basis of statements allegedly recorded by the investigating officer under duress and coercion. Since these statements relied upon by the 2nd respondent in the Orders-in- Original have already been retracted and they are also contested in judicial proceedings, the petitioners claim that the alternative remedy is not an efficacious remedy but an oppressive one. 7. Normally, the aforesaid argument, which any importer takes for bypassing the alternative remedy of appeal, does not appeal to us. Every person aggrieved by an Order-in-Original, wants to invoke the writ jurisdiction of this Court, so as to avoid the requirement of having to make a pre-deposit of 7.5% of the duty. 8. But in extraordinary cases where the principles of natural justice have been completely thrown to the winds or where there is total lack of jurisdiction on the part of the adjudicating authority, this Court would not hesitate to interfere in exercise of the power conferred under Article 226 of the Constitution of India. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d also corroborated by a person, who facilitated their clearance as well as the employees of a transport company. 13. But oral statements allegedly made by the petitioners, which they have retracted immediately, cannot form the sole basis for coming to the conclusion that a wrong doer of the present could have been a wrong doer in the past also. It will be a different matter, when it comes to live containers. In so far as the live containers are concerned, the cargo is seized and is available as primary evidence to show that what was imported in those live containers as baby diapers, actually contained cigarettes. But in respect of past containers already cleared and disappeared into the market, the primary evidence is lost. Therefore, merely on the basis of confession statements recorded from the petitioners and the alleged corroborative statements made by the person, who cleared the cargo and who transported the same, a presumption of this nature cannot be drawn. 14. Mr. B. Narasimha Sarma, learned senior standing counsel contended that the 2nd respondent did not proceed merely on the basis of oral statements, but also examined the issue on a scientific basis, by assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ast containers had taken place without following any of the procedures, there could be some logic to contend that the smuggled goods escaped the clutches of law. But today there are no allegations that the procedure prescribed by law was not followed while clearing the past containers. 18. Even as per the Orders-in-Original, the goods in the past containers were cleared under Section 47, after carrying out examination of random cargo. The 2nd respondent has extracted in paragraph 135 of the impugned order, the examination order and the examination report. Paragraph 135 reads as follows: I have perused the examination orders and examination reports relating to the past containers. The examination order in general is as under. Open and inspect 5% of cargo or more packgs. Verify desc wrt org import documents/bank attested documents verify the brand verify rsp declaration The examination report in general is as under opened and inspected selected pkgs. Verified desc wrt org import documents and found in order, verified the brand good baby verified rsp declaration dated 7-1-2014 placed in file 19. After having extracted the examination order and the examination report, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial. Though none of the witnesses stated that they transported cigarettes, the 2nd respondent has drawn an inference on the ground that if those containers contained only Baby Diapers, there was no need to transport those goods to safe places and that there was no need to engage a 3rd person to get the goods cleared. These presumptions are also completely unknown to law. 22. As contended rightly by the learned counsel for the petitioners, Section 47 of the Customs Act, 1962 prescribes the procedure for clearance of goods for home consumption. Two conditions are to be satisfied for the Proper Officer to pass an order under Section 47(1) permitting clearance of the goods for home consumption. They are: (1) that the goods are not prohibited goods and (2) that the importer has paid import duty assessed thereon along with any charges payable in respect of the same. Therefore, once goods are cleared under Section 47, there is a presumption in law that the procedure prescribed under Section 47 has been followed. 23. In case the duty payable on the goods had been short levied or not levied, on account of any collusion, willful misstatement or suppression of facts, it is open to the P ..... X X X X Extracts X X X X X X X X Extracts X X X X
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