1993 (4) TMI 81 - HC - Customs

Issues Involved:
1. Legality of the order of adjudication dated 9-10-1991.
2. Authority and jurisdiction of the customs authorities to confiscate goods and impose penalties.
3. Whether the imported goods are "disposal goods" or "new goods."
4. Availability and appropriateness of alternative remedies under Section 129 of the Customs Act.
5. Compliance with the direction of the High Court in the earlier writ petition.

Issue-wise Detailed Analysis:

1. Legality of the order of adjudication dated 9-10-1991:
The petitioners challenged the order of adjudication dated 9-10-1991, arguing that the goods were wrongfully and illegally detained and that the demand for interest on leviable customs duty was wrongful, illegal, arbitrary, and without authority. They contended that the customs authorities had no power or jurisdiction to confiscate the goods under Section 111(d) or to impose any penalty under Section 112 of the Customs Act. The petitioners asserted that the order was passed ex parte without due consideration of the law.

2. Authority and jurisdiction of the customs authorities to confiscate goods and impose penalties:
The customs authorities, in their affidavit-in-opposition, argued that the petitioners' remedy lay by way of appeal before the Tribunal under Section 129 of the Customs Act. They contended that the application was misconceived, not maintainable at law, and without substance. The customs authorities maintained that they had acted within their jurisdiction and followed due process in issuing the show cause notice and passing the adjudication order.

3. Whether the imported goods are "disposal goods" or "new goods":
The petitioners argued that the goods were new and not "disposal goods," relying on physical inspection and verification. They cited several precedents to support their claim, including decisions reported in 1985 (21) E.L.T. 207, 1988 (35) E.L.T. 357, 1986 (25) E.L.T. 541, and 1989 (40) E.L.T. 382. They contended that the customs authorities had previously cleared identical goods and that a departure from this practice was unjustified without cogent reasons. The respondents, however, argued that the adjudicating authority had considered all relevant aspects, including sub-standard quality and low price, and concluded that the goods were disposal goods.

4. Availability and appropriateness of alternative remedies under Section 129 of the Customs Act:
The respondents emphasized that Section 129 of the Customs Act provided for an appeal against the order of the Collector of Customs before the Customs, Central Excise, and Gold (Control) Appellate Tribunal. They argued that the petitioners should have availed of this remedy instead of filing a writ petition. The court noted that the petitioners had not provided any reason for not filing an appeal as per the provisions of the Customs Act.

5. Compliance with the direction of the High Court in the earlier writ petition:
The respondents contended that they had strictly complied with the direction of the High Court in the earlier writ petition by issuing a show cause notice and passing the adjudication order. They argued that there was no lack of jurisdiction in passing the order, and it could not be challenged on these grounds.

Conclusion:
The court concluded that the adjudicating authority had passed the order in accordance with the direction of the High Court in the earlier writ petition and found no illegality or arbitrariness in the order. The court emphasized that the petitioners should have availed of the appeal provision under Section 129 of the Customs Act. However, for the ends of justice, the court allowed the petitioners to prefer an appeal before the Appellate Authority, with a direction to the Appellate Authority to condone the delay and hear the appeal on merits. The application was disposed of accordingly, with no order as to costs.

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