TMI Blog1995 (2) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... rs claim to have sold some of the machines. The order dated 5-4-1994 was set aside and the matter remanded back to be heard on affidavits. 3.Affidavits were filed. A preliminary objection was raised by the petitioners that the impugned order of detention had been issued by the Preventive Officer of the Department of Revenue Intelligence, who had no jurisdiction to do so. The Department produced relevant notification from which it was apparent that the Preventive Officer of the DRI had in fact been empowered to exercise powers inter alia under Section 110 of the Act. The point was decided as a preliminary issue against the petitioners by an order dated 19th September, 1994. 4.Further issues were raised by the petitioners. The first is whether an order under Section 110 may be passed in respect of the goods which have already been cleared. According to the petitioners the precondition to the exercise of power under Section 110 is that goods must be liable to be confiscated. It is submitted that once the goods have been cleared they were no longer confiscable under Section 111 of the Act. 5.It is contended that when goods have been cleared under an order under Section 47 they ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould be permitted to determine the classification of the imported goods as to whether they fall under Tariff Heading 8701 or 8432. 9.According to the respondents what was called the order of Shri Varadarajan was not in fact an order of adjudication. The Court's attention was drawn to the fact that the order was on a plain piece of paper and not in the normal form. The Court was also told that in other matters where the importers had sought to rely upon this order of Shri Varadarajan, the Court had remanded the matter back to him to determine the issue after hearing the parties. 10.In such cases Shri Varadarajan had passed a reasoned order to the effect that the machines were classifiable under Tariff Heading 8701. 11.The respondents have also relied upon the fact that the petitioners had themselves imported identical machines earlier under Tariff Heading 8701 and paid duty thereon. It was stated that subsequent to the imports in question the same machines had again been imported by the petitioners and customs duty had been paid on the basis that they were classifiable under Tariff Heading 8701. It is argued that there were sufficient materials before the Department to issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the different classes of goods which are liable to confiscation. Section 111(m) (with which we are concerned in this case) provides that goods brought from a place outside India which do not correspond in respect of value or in any other particular with the entry made under the Act are liable to confiscation. 17.Section 110 of the Act provides for the seizure of goods if the proper officer has reason to believe that any goods are liable to confiscation under the Act. An order of seizure is to be followed by a show cause notice issued under Section 124 of the Act within a specified period. An order of seizure is thus preparatory to proceedings for confiscation. The proceedings for confiscation commence with the service of notice of seizure under Section 110 and conclude with the order passed on the proceedings initiated by a show cause notice issued under Section 124. 18.In this case a show cause notice has been issued against the petitioner on 29th September, 1994 under Section 28 read with Section 124 of the Act. In the show cause notice, a copy of which was handed over to Court by the respondents, a claim has been made that the machines imported by the petitioner were classif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [See : Collector of Customs and Central Excise, West Bengal v. Hindusthan Motor Ltd. : AIR 1975 Cal. 368 (DB); Assistant Collector of Customs v. United India Minerals : 79 CWN 900 = AIR 1976 Cal. 21]. In both the cases of Hindusthan Motors Ltd. (supra) and United India Minerals (supra) the power of review had been relied upon by the petitioners in those cases to contend that the order under Section 47 (or Section 51) had become final. Indeed in the case of United India Minerals the period during which the power of review could be exercised had already expired. Nevertheless the Court held that the power to confiscate the goods remained. 23.A full Bench of this Court in the case of Eurasian Equipment and Chemicals Ltd. and Ors. v. The Collector of Customs and Ors. : 83 CWN 866 = AIR 1980 Cal. 188 upheld the law as stated in the cases of Hindusthan Motor (supra) and United India Minerals (supra). 24.It was contended before the Full Bench that Section 113 which relates to confiscation of goods attempted to be exported (similar to Section 111 of the Act in relation to imported goods) could not have any application to a case where the goods had actually been exported after an order u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited goods as defined under Section 2(33) of the Act. Failure of the conditions to be satisfied by the importer in respect of the goods would result in treating the goods as prohibited goods. Section 47 specifically does not say that the order made thereunder is final subject to any appeal, etc. The usual legislative practice of granting finality to such an order is not found in Section 47. In the circumstances, we are not inclined to agree with the submission of the learned Counsel for the petitioner." 27.The reasoning is not limited to cases of prohibited goods as contended by the petitioner. 28.The petitioner has contended that the Delhi High Court in Jain Shudh Vanaspati v. Union of India Ors. - 1982 (10) E.L.T. 43 and the Bombay High Court in Union of India v. Popular Dychem - 1987 (28) E.L.T. 63 have taken a contrary view. If that were so I have no hesitation in following the law laid down by the Full Bench of this Court both in principle and because of the binding nature of the precedent. But the Delhi High Court has not in fact decided the issue in the manner contended by the petitioner. The Delhi High Court said :- "Consideration Section 47 of the Customs Act in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to contend that power tillers are not tractors and are not classifiable under Tariff Heading 8701. The first is that other concerns had imported the same machines when the Customs Authorities had treated them as classifiable under Tariff Heading 8432. Reliance has also been placed on an order of Shri Varadarajan dated 2-7-1993 in this context. It does not appear under what section the order of Shri Varadarajan was passed. The order is handwritten and in any event passed in connection with the consignment of another concern. It however appears that in respect of at least two other importers namely, General Trading Company and Khazana Credit Private Ltd. the matter was remanded back by this Court for a decision on the matter by Shri Varadarajan after hearing the parties. In both the cases Shri Varadarajan has taken a view different from that taken by him in the order dated 2nd August 1993. 35.The petitioner has relied upon the decision in Sandip Agarwal v. Collector of Customs - 1992 (62) E.L.T. 528 (Cal.) to contend that the Customs Authorities having cleared identical goods at identical prices in the past were bound by their own precedent. The decision in fact operates against ..... X X X X Extracts X X X X X X X X Extracts X X X X
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