1980 (8) TMI 89 - HC - Customs

Edible oil imported in stainless steel containers - Prohibited goods - Review - Short levy and confiscation

Issues Involved:
1. Legality of the importation of stainless steel drums under the Customs Act.
2. Determination of whether the stainless steel drums were imported as containers or as a separate item.
3. Validity of the short levy notices and confiscation notices issued under Sections 28 and 124 of the Customs Act.
4. Alleged suppression of facts and review of the order under Section 47 of the Customs Act.

Detailed Analysis:

1. Legality of the Importation of Stainless Steel Drums:
The petitioner company imported 13.500 M.T. of RBD Palm oil in stainless steel drums under an open general license as per Import Trade Control Public Notice No. 64 ITC (P&B)/78. The Customs authorities cleared the goods after physical checking, confirming that the import was not prohibited under Section 47 of the Customs Act. There was no restriction at the time of import that edible oil should be imported only in a particular type of drum or container, and stainless steel was included in the term "steel" as per Serial No. 73-23 of the First Schedule to the Import Control Order.

2. Determination of Whether the Stainless Steel Drums Were Imported as Containers or as a Separate Item:
The central question was whether the stainless steel drums were imported as containers for palm oil or as a separate item. The respondents argued that the use of stainless steel drums was an indirect method to import stainless steel, a banned item. However, the petitioners contended that international trade practices favored stainless steel containers to prevent contamination and deterioration of edible oil. The court found the petitioners' evidence, including letters from the State Trading Corporation and SGS Control Service Linc., more credible, establishing that stainless steel containers were standard in international trade for such imports.

3. Validity of the Short Levy Notices and Confiscation Notices:
The Customs authorities issued short levy notices under Section 28, alleging suppression of the fact that the drums were stainless steel, and show cause notices under Section 124, alleging smuggling and destruction of evidence. The court examined whether the stainless steel drums were imported in violation of any conditions. It concluded that the respondents failed to prove that stainless steel containers were not normally used in international trade. The court held that the petitioners did not violate any exemption conditions under Notification No. 104/76 dated 2nd August 1976 or the Market Control Trade Order, 1955.

4. Alleged Suppression of Facts and Review of the Order under Section 47 of the Customs Act:
The petitioners argued that once goods are cleared under Section 47, issuing notices under Sections 28 and 124 amounts to an unlawful review of the clearance order. The court agreed, stating that Section 47's finality could only be disturbed by proving fraud or deliberate suppression, which the respondents failed to establish. The court also noted that the requirement to disclose the nature and cost of containers was introduced after the importation, making the proper officer's satisfaction under Section 47 final and binding.

Conclusion:
The court quashed and set aside the impugned show cause notices under Sections 28 and 124 of the Customs Act, ruling that they amounted to an unlawful review of the customs officer's order under Section 47. The goods confiscated under the show cause notices were ordered to be returned to the petitioners, and the writ petition was allowed with costs. The court emphasized that the disposal of permitted containers in the normal course of business was not prohibited by any provisions of the Customs Act or the Import Export Act or Orders.

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