TMI Blog1990 (8) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... other European countries as mentioned above, with the knowledge and satisfaction of the concerned Customs authorities and they are also holders of several R.E.P. licenses. It was their case that on the basis of such licenses, importation of 60 pallets of the concerned goods, approximately valued at Rs. 11,36,560.47 was made from M/s. Marlo International Corporation, U.S.A. (hereinafter referred to as the said foreign seller). It was their further case that on or about 28th July, 1988, the vessels MV Bengal Progress - Voy-121 Line No. 298 and Rotation No. 464 carrying the concerned goods arrived at the Port of Calcutta. It has been stated that before such arrival, on or about 12th July, 1988, the appellants through their clearing agent M/s. New India Corporation, Calcutta, filed the relevant Bill of Entry with all relevant and necessary papers and import licences, for assessment of the said goods for warehousing under Section 59 of the Customs Act, 1962 (hereinafter referred to as the said Act) and then, the concerned appraiser of Appraising Group-II Customs House, Calcutta, checked and verified and/or scrutinised all documents and import licenses as filed and passed the Bill of Ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said goods and the Customs Authorities upon payment of pro rata, a part of the assessed duty by the appellants, duly released the said 85 pallets of the concerned goods on necessary satisfaction, after checking the importation documents. 6. After this, on or about 13th December, 1990 the appellants filed two other Ex-Bond Bills of Entry for home consumption for release of 4 and 16 pallets respectively of the concerned goods, but this time, the Customs Authorities, according to the appellants, wrongfully refused to release the concerned goods and that too, without any justification. 7. It was the case of the appellants that between 25th July 1989 and 17th April 1990, they also imported 5 several consignments of the concerned goods from U.K., U.S.A. and West Germany under several R.E.P. licenses duly transferred in their favour in the manner as mentioned above and on arrival of the said goods, they duly submitted 5 Bills of Entry for warehousing under Section 59 of the said Act on diverse dates between 28th July 1989 and 17th April 1990 and according to them, on such filing the Bills of Entry, the Customs Authorities duly made provisional assessment in respect of five such con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms Authorities apart from pointing out that the mere fact that the goods in question, had been purchased out of stock lot, can by no means lead to the logical conclusion that they were disposable goods and it would be highly erroneous to allege that there has been any violation of any of the provisions of the Import (Control) Order, 1955 or there is any scope of applying Section 111(d) of the said Act in the facts of this case. No doubt, on or about 14th March 1990, a personal hearing was given, wherein, submissions were made by the appellants before the Additional Collector of Customs. 11. It was also the case of the appellants that apart from the consignments as mentioned hereinbefore, two fresh consignments in respect of the concerned goods were also shipped by the said foreign suppliers and the appellants were re-served with four other identical letters dated 10th April 1990 from the Assistant Collector of Customs for Import Bond Department and there were notice of detention and for sale of warehoused goods in terms of Section 72(2) of the said Act. It has been stated that in the said notices, it was alleged inter alia amongst others that the appellants have not discharged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... burden which has ultimately affected and is affecting the cash flow of the appellants in their business and in such circumstances, they were compelled to keep the concerned goods warehoused even at the cost of substantial loss of business." 13. The appellants have given instances where clearances were allowed under the provisions of the said Act or the Imports (Control) Order, 1955. But it was claimed by them now appearing through Mr. Mullick, that the subsequent imposition of restrictions were improper. 14. It would appear that the learned Trial Judge on 18th May 1990 made the following order :- THE COURT : Having heard Mr. Chatterjee for the petitioner and Mr. Sengupta for the customs authorities and considering the materials on record it appears that the grievance of the petitioner is that the impugned show cause notices dated 28-3-1990, 9-3-1990 and 25-4-1990 being Annexure 'G' series are all bad in law. It has, however, appeared that the petitioners have filed the replies and appeared before the adjudicating authorities. Their further grievance is that instead of passing the order of adjudication the matter has been delayed to the prejudice of the petitioners. Mr. Sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at date, four show cause notices were required to be adjudicated and in respect of three consignments as mentioned in the last column of page 52 and those mentioned in page 74, no show cause notices were issued. But, on 16th July 1990, it was pointed out to the Court that show cause notices have been issued not only for the last three consignment as mentioned above, but also for the balance goods contained in the pallets which were covered by the particulars of goods lying in bond, provisionally assessed under Section 16 of the said Act as mentioned in page 52 of the application. Such action, was claimed by Mr. Mullick to be improper, irregular, void and not bona fide and was intended to avoid the orders, which were to be made by this Court. Mr. Das, of course, stated that the order as made by this Court could not have any bearing so far the subsequent show cause notices were concerned and such show cause notices had to be issued as under the said Act, the authorities, if necessary, would be entitled to have the subject goods confiscated. 17. In support of his submissions, Mr. Mullick referred to the case of Jain Shudh Vanaspati Ltd. Anr. v. Union of India Ors. - 1982 (10) E.L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Further reference was made by Mr. Mullick to the case of Union of India Others v. Popular Dyechem, 1987 (28) E.L.T. 63 (Bom.) which indicated that once the goods have been cleared by the Customs authorities after physical verification and check up under Section 47 of the Customs Act, 1962, confiscation of the goods amount to revision of order passed under Section 47 of the Act which can only be done by the Collector or the Central Board of Excise and Customs under Section 129D ibid. In the instant case, the order of clearance has been made by the Assistant Collector after physical verification under Section 47 such goods cannot be confiscated in the absence of order passed in Revision under Section 129D of the Customs Act, and above being the position and since the authorities concerned would not be appropriately authorised to act on such or any change of view, specially in a case of the present nature, when on similar set of facts, they have directed release of several pallets of the consigned goods and the appellants have taken delivery of them on the basis of such terms as imposed. 18. The conduct of the authorities concerned in the instant case as indicated earlier and more ..... X X X X Extracts X X X X X X X X Extracts X X X X
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