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TMI Blog1992 (5) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... riginal name of the appellant) deliberately misdeclared the goods to evade the duty and to pass the goods under the licences which were not valid. The goods were, thus, held liable to confiscation under Section 111(d) and also under Section 111(m) of the Act and further that the importers were liable to penalty under Section 112 of the Act for improper importation of the goods. Consequently, the Collector set aside the order of clearance made earlier by the customs authorities under Section 47 of the Act when the goods were assessed under Item 63(2) ICT as stainless Steel angles as per bill of entry, and consequently the Collector ordered the confiscation of the goods (which had been seized after clearance) under Section 111(d) of the Act read with Section 3(2) of the Imports and Exports (Control) Act, 1947 and the Import (Control) Order, 1955 as also under Section 111(m) of the Act. Option was, however, given to the owners under Section 125 of the Act to pay a fine of Rs. 21 lakhs in lieu of confiscation. Personal penalty of Rs. 4 lakhs was also imposed. The Collector also raised a demand of Rs. 6,13,741.25 being the duty of customs short levied on the goods when they were classif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 8,25,335/- and in which the petitioners appellants were entitled according to the rules, 7½% profit and thus, the market value of the goods would not be more than Rs. 8,87,870/-. The learned Counsel for the appellant submits that refund of Rs. 1,45,155/- was due to the appellant as per the orders of the Central Government as passed in consequence of the judgment under appeal, will not be withdrawn by the appellant and that this should be treated as an undertaking by the appellant. Deducting this amount from Rs. 8,87,870/-, the net bank guarantee by the appellant, therefore, to be furnished by the appellant is Rs. 7,42,715/-. The appellant give bank guarantee for the above amount and shall keep it alive till the disposal of the appeal. The amount of Rs. 10 lakhs be refunded to the appellant on his undertaking to continue the bank guarantee till the disposal of the appeal, Bank guarantee will be in favour of the Collector of Customs, Bombay, who is dealing with this case. On his furnishing the bank guarantee, the refund will be made by the Government within 2 weeks to the appellant. Appellant seems to have filed certain documents which were not a part of the Writ petition. He ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayable under Item 63 (29) ICT (50%). The difference of duty amounted to Rs. 1,86,628.72. The petitioner disputed and said the goods had been rightly classified under Item 63(2) and no extra duty as claimed was payable. 11.On 3 April 1969 the Assistant Collector seized the goods from the godown where these had been stored. The goods which had been sent to Delhi were also detained there. Petitioner says that after the seizure of the goods the customs authorities again obtained opinion of those three very experts from whom opinion had been obtained earlier. This was done without the knowledge and at the back of the petitioner. 12.On 17 July 1969 Collector of Customs, Bombay, issued a notice under Section 130 of the Act proposing to set aside the order of clearance made in regard to the goods in question and proposed to confiscate the same under Sections 111(d) and 111(m) of the Act. He also proposed to impose a fine of Rs. 27 lakhs and a penalty of Rs. 4 lakhs under Section 112 of the Act. It was also proposed to recover the amount of duty alleged to be short levied and was stated to be amounting to Rs. 6,13,841.59. The show cause notice said that the goods imported were stainless s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer of customs has passed any decision or order under this Act (not being an order passed in appeal under Section 128) for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may pass such order thereon as it thinks fit : Provided that no order enhancing any penalty or fine in lieu of confiscation or confiscating goods of greater value shall be passed under this section unless the person affected by the proposed order has been given a reasonable opportunity of showing cause against it : Provided further that where the Board is of opinion that any duty of customs has not been levied or has been short-levied, no order levying or enhancing the duty shall be made unless the person affected by the proposed order is given notice to show cause against it within the time-limit specified in Section 28. No(2) decision or order passed by an officer of customs shall be revised under this section by the Board of its own motion and no application for the revision of any such decision or order shall be entertained, after the expiry of two years from the date of such decision or order." 14.Under Section 152, the Central Government may by notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct thereto as he thinks fit" mean such order as may in the circumstances of the case for rectifying the defect be regarded by him as just. Power to pass such order as the revising authority thinks fit may in some cases include power to make or direct such further enquiry as the Deputy Commissioner may find necessary for rectifying the illegality or impropriety of the order or irregularity in the proceeding. Hence, conferment of power to make further enquiry in cases where after being satisfied about the illegality or impropriety of the order or irregularity in the proceeding, the revising authority thinks it just for rectifying the defect to do so does not amount to enlarging the jurisdiction conferred by Section 12(2)." 16.We do not think it is necessary for us to analyse this judgment and examine the provisions of the Madras General Sales Tax Act vis-à-vis those of the Customs Act, 1962. There is sufficient material for the Collector of Customs to exercise his power under Section 130 of the Act. The experts had given opinion on cut samples shown to them and not on the basis of full length of the imported article. Description of the goods given in the bill of entry did not tally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued on these two grounds. The word "entry" appearing in ground (m) has been defined under sub-section (16) of Section 2 of the Act. In that "entry" in relation to goods means an entry made in a bill of entry, shipping bill, etc. Then under Section 112 of the Act, if any person, who in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under Section 111, shall be liable to penalty prescribed therein. Under Section 125, whenever confiscation of any goods is authorised by the Act, the Collector of Customs could give to the owner of the goods an option to pay in lieu of confiscation such fine as he thought fit, but then such fine shall not exceed the market price of the goods confiscated, less in the case of imported goods the duty chargeable thereon. We, therefore, see no force in the argument of the petitioner that the Collector of Customs or the Government of India could not confiscate the goods if contravention of Section 111 was there. 20.With reference to fourth ground of attack, we find this is how the Collector of Customs dealt with the same :- "During the course of personal hearing the Counsel for importers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Land Customs Act were penal in character, and that the appropriate customs authority was empowered to make an enquiry in respect of an offence alleged to have been committed by a person under those Acts, summon and examine witnesses, etc., where an offence was committed, make an order of confiscation of the goods in respect of which the offence was committed and impose penalty on the person concerned. The Court held that if so, the burden of proof was on the customs authorities and they had to bring home the guilt to the person alleged to have committed a particular offence under the said Acts and by adducing satisfactory evidence. 26.An order of administrative authority or quasi authority is liable to challenge if it takes into account irrelevant material or ignores relevant material. When the consequences may result in deprivation of property, these authorities have to act fairly, reasonably and in a just manner. It is not for us while sitting in a writ jurisdiction to reappraise the evidence, nor we think we are entitled to do so. But then the authorities have to act on sound principles which are now well entrenched in the administrative law. In the present case, we think th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of manufacture of hospital and surgical equipments and appliances tables, racks, X-ray illuminators, hospital trolleys, surgical cupboards, etc. Mr. H.D. Paul, Deputy Assistant Iron & Steel Controller, even appeared before the adjudicating authority and testified to this fact. With all this evidence on record the Government of India in the impugned order said that the fact remained that the clarification given by the Iron and Steel Controller did not introduce a certain amount of ambiguity in the matter. It also found force in the submission of the petitioner that para 277 of the ITC said that the customs classification and ITC classification could be on the different footing. Obviously, the customs classification would be based on the nature of the goods which were ordinarily brought and sold in the market. On the other hand, if the licensing authority issued a licence for something different it could not be held against the party. Government of India also noticed that it was difficult to go behind the intention of the licensing authority on the present case but then said that clarification they gave could be read either way. 28.In M.G. Abrol, Additional Collector of Customs, Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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