TMI Blog2001 (11) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... n. For the aforesaid reasons, it is not possible to uphold the impugned order of the Tribunal as also the order of the Collector dated 22nd October, 1993. For the same reasons, the impugned judgment and order of the High Court directing the release of the goods cannot be sustained till it is finally decided as to whether there is any substance or not in the allegations made against the importer in the show cause notice dated 18th February, 1991 on examination of the merits of the case. As already noticed, the merits were not examined by the Collector in view of his conclusion that the second order of adjudication could not be made. The High Court has directed that the Custom Department would pay the demurrage, container charges and ground rent to the Corporation from 16th January, 1991. - 767-768 of 1995 - - - Dated:- 6-11-2001 - S.P. Bharucha, C.J.I., Y.K. Sabharwal and Brijesh Kumar, JJ. [Judgment per : Y.K. Sabharwal, J.]. - In Civil Appeal Nos. 767-768 of 1995, the challenge of Union of India is to the judgment and order of the High Court whereby allowing the writ petition, the Collector of Customs has been directed to release the imported goods of the writ petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value Rs. 17,173/-). The importer requested the Assistant Collector of Customs for waiver of show cause notice and personal hearing. On 21st September, 1990, the Assistant Collector passed an order on note-sheet whereby the importer was allowed the release of the excess goods after payment of fine of Rs. 25,000/- and personal penalty of Rs. 5,000/- . The amounts were deposited on 22nd September, 1990 as also customs duty amounting to Rs. 43,657/- on the excess goods. On that day itself, i.e., 22nd September, 1990, DRI Officers visited the CFS Patparganj and detained the consignment on the basis of information available with them. On November 15, 1990, the DRI seized the detained goods. 7.A writ petition was filed in the Delhi High Court by the importer seeking directions against the custom authorities for release of consignment of Polyester Fabric imported by it against duty free advance import licence urging that the consignment had been illegally and unauthorisedly detained by the custom authorities. The import was effected by the importer under Duty Exemption Entitlement Certificate (DEEC) and duty free advance import licence. Under that licence, the importer was allowed to im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny and its Directors be not proceeded with for penal action under Section 112 of the Customs Act, 1962. By order dated 25th February, 1991, the Additional Collector Custom ordered confiscation of the goods but allowed the goods to be redeemed on payment of redemption fine of Rs. 4,00,000/- and appropriate duty amounting to over Rs. 16,00,000/-. Besides it, penalty of Rs. 10,00,000/- each was imposed on the Directors and Rs. 5,00,000/- on the company. 11.The order dated 25th February, 1991 was set aside by the High Court as it was found that the principles of natural justice had not been complied with before passing the said order supposedly on account of time limit for decision fixed by the High Court and without waiting for reply of the importer, the order was passed by the Collector on 25th February, 1991. The High Court while setting aside that order directed the matter to be decided afresh after dealing with the points raised by the petitioner in the written submissions including the point of jurisdiction in view of the order dated 10/15th January, 1991. On remand the matter was dealt with by the Collector of Custom before whom two submissions were made, namely, (1) In view o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms committed serious illegality in coming to the conclusion that the principles of res judicata or constructive res judicata have any applicability to the facts and circumstances of the present case. Further, the Tribunal erroneously dismissed the appeal, contends Attorney General, by holding that the matter stood concluded by the judgment of the High Court directing release of the goods. The test report in respect of which the Collector states in his order dated 22nd October, 1993 that on application of principles of constructive res judicata, it is deemed to have been considered by the Assistant Collector when he passed the order on 15th January, 1991, Mr. Sorabjee submits that the conclusion is a result of manifest erroneous approach for the reason that the order dated 10/15th January, 1991 was only a formal order and in fact as a result of concession of the importer, an order on note-sheet had already been passed on 21st September, 1990 pursuant to which, as per the own case of the importer, it had deposited the redemption fine, personal fine and the customs duty on 22nd September, 1990 and even the writ petition had been filed seeking release of the goods on 7th November, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llector dated 22nd October, 1993. For the same reasons, the impugned judgment and order of the High Court directing the release of the goods cannot be sustained till it is finally decided as to whether there is any substance or not in the allegations made against the importer in the show cause notice dated 18th February, 1991 on examination of the merits of the case. As already noticed, the merits were not examined by the Collector in view of his conclusion that the second order of adjudication could not be made. 15.Therefore, setting aside the impugned judgment and order of the High Court, the order dated 22nd October, 1993 of the Collector and order dated 13th September, 1999 of the Tribunal, we remand the matter to the Collector for fresh decision on the show cause notice after affording to the importer a reasonable opportunity to put forth its view point. While granting the leave, this Court had directed maintenance of status quo. The order of status quo will continue till the matter is examined afresh by the Collector in terms of this judgment. 16.The High Court has directed that the Custom Department would pay the demurrage, container charges and ground rent to the Corpor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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