TMI Blog1980 (8) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... drum or container could be of steel or iron as referred to in Serial No. 73-23 of the First Schedule to the Import Control Order. Stainless Steels is included in the expression "Steel" in the said entry. The drums were brought at the Ghaziabad factory of the company and after unpacking the oil they were disposed of by the petitioner company in the normal courses of business. Acting on the belief that under Appendix 3 of the Import Policy A.M. 79, importation of stainless steel drums was banned, the Customs authorities effected searches and seized the drums (under Section 110 of the Customs Act) from various places. Respondent No. 2, thereafter, through the Asstt. Collector of Revenue and Intelligence, New Delhi, issued summons to the petitioner No. 2 and to the General Manager of petitioner No. 1 under Section 108 of the Customs Act. The statements of petitioner No. 2 and the General Manager were recorded on September 1, 1979. A public notice was issued by the Customs authorities on September 6, 1979 regarding the declarations made in respect of package of containers. The said notification reads as follows :- "No. 90 price 0.30 paise IMP SUP. 169 8 New Custom House Bombay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exure attached) as provided for under section 28 of the Customs Act, 1962. You are therefore, requested to explain why the amount specified above should not be recovered from you." These show cause notices were replied to by the petitioners. Thereafter on June 21, 1980 the Collector of Bombay, respondent No. 5, issued show cause notices to the petitioners, under Section 124 of the Customs Act, calling upon them to explain why the stainless steel drums should not be confiscated. The allegations in the show cause notice, in substance, were that the petitioners were engaged in (not only) acquiring, storing, purchasing, harbouring and dealing with the smuggled stainless steel drums and that they were further engaged in destroying its identity to avoid their detection, by cutting and shearing thousands of such drums at the premises of the concerns connected with them. It was further alleged that drums were flattened and rerolled in cut sheets for the purpose of undetected disposal. On January 22, 1980 the authorities issued supplementary short levy notices under Section 28 of the Customs Act alleging that the authorities had received additional particulars regarding higher price of st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mption." This letter was sent by the State Trading Corporation in response to the specific query made by the petitioners. Another letter is by SGS Control Service Linc. New York U.S.A. This letter is worth nothing. The letter reads: "as confirmed to you today vide telex, the U.S. marked practice for shipping refined edible oil is to use coated or stainless steel drums or tanks to prevent quality deterioration. In addition, some vessel shipments are made employing a blanket or nitrogen over the surface of the oil in order to prevent oxidation." 4. It is common knowledge that goods like oil can be removed from one place to another only in some containers. Modern marketing practice insists upon the petitioners, in the present case, was R.B.D. palm oil only. We do not agree with the respondents that stainless steel was also imported by the petitioners. 5. It might sound anamolous that stainless steel as such is prohibited item but stainless steel containers for carrying permitted goods are not. It can even be said that this is a lacuna in the law as it stood on the date of the importation in the present case. But neither the Department nor the Court can fill this lacuna by str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated any conditions of exemption contained in the Notification No. 104/76 dated 2nd August, 1976 or the market Control Trade Order, 1955. 7. The question can be approached from another angle. Suppose chocolates are imported in silver boxes or cigarettes are imported in gold boxes. Importing chocolates and cigarettes in silver or gold boxes is so unusual that this can never be done in normal trade. Can it be said that the use of stainless steel is so unusual or so preposterous, especially when the State Trading Corporation certifies that on the ground of health and hygiene, stainless steel is preferred in international trade? 8. The petitioners attack short levy notices and confiscation notices on two grounds. One is on the merits which we have already dealt with. The other is that once the goods are cleared by the Customs authorities after physical verification and check up under Section 47 of the Customs Act issuing of such notices amounts to review of the order under Section 47 of the Act. It is submitted that the order of clearance passed under Section 47 of the Act can be revised by the Collector of Customs or Board under Section 130. There are no inherent powers to review ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leged that the containers were painted and thus the original identity of the drums was suppressed by the petitioners. This allegation is on the assumption that stainless steel drums was a prohibited item. We do not agree. The law as it then stood, did not require of an importer to disclose the nature of the material or the price of the containers. A new requirement in this regard was introduced for the first time by public notice dated September 6, 1979 i.e. after the importation of oil by the petitioner. We, therefore, hold that the proper officer's satisfaction, that the goods were not prohibited goods, had reached finality by the time the goods were cleared. 11. In the facts and circumstances of the case, the notice under Section 28 and Section 124 of the Customs Act amount to review of the customs officers' order under Section 47 as they proceed on an assumption contrary to the said order. We, therefore, hold that the impugned notices under Section 28 and 124 of the Customs Act are contrary to law and should be set aside. The use or disposal of the permitted containers for the resale by changing their form by way of normal trade is not prohibited by any provisions of the Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X
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