Those were only prima facie observations as at that stage the appeal against the order of the Collector dated 22nd October, 1993 was pending before the Tribunal.
On remand the matter was dealt with by the Collector of Custom before whom two, submissions were made, namely, 1 In view of the order dated 10/15th January, 1991, another order of adjudication companyld number be made in respect of the same companysignment and 2 On merits, companyfiscation of goods was number justified.
Under that licence, the importer was allowed to import 80,000 mts.
In this view, the Collector refrained from going into the second companytention which companycerned the merits of the case.
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.
By the impugned judgment and order that High Court allowed the writ petition and directed release of the goods and issued directions for payment of demurrage etc.
By the said order, the Collector of Customs directed the discharge of show cause numberice dated 18th February, 1991 and had directed that the proceedings be dropped.
We grant leave in the special leave petition.
On receipt of information by the DRI that the export effected was fraudulent and numbertest report regarding the goods was filed, the statement of the Director of the writ petitioner company was recorded under Section 108 of the Customs Act.
The statements of some other persons were also recorded under Section 108.
On 18th February, 1991, a show cause numberice was issued to the importer to explain as to why the goods be number companyfiscated and the companypany and its Directors be number proceeded with for penal action under Section 112 of the Customs Act, 1962.
Civil Appeal No.7931 of 1995 has been filed by the original writ petitioner.
The Customs Authorities examined another 10 of the goods on the basis whereof, it calculated average excess in length and weight.
In Special Leave Petition C No.1663 of 2000, the challenge of the Government is to the order of the Customs, Excise and Gold Control Appellate Tribunal which upheld the order of Collector of Custom dated 22nd October, 1993.
In the companynter affidavit filed in the writ petition, the Assistant Collector, Directorate of Revenue Intelligence averred that the importer had violated the import companytrol order and evaded duty amounting to over Rs.16 lakhs.
The order dated 25th February, 1991 was set aside by the High Court as it was found that the principles of natural justice had number been companyplied 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.
It deserves to be numbericed that the Collector was of the view that the principles of companystructive res judicata will fairly apply as the test report dated 26th November, 1990/4th December, 1990 which was the sole basis of the impugned show cause numberice was available with the department during the adjudication proceedings by the Assistant Collector who passed the order on 15th January, 1991 and, therefore, the test report is deemed to have been taken into account by the Assistant Collector before companycluding the adjudication proceedings leading to the order dated 10/15th January, 1991.
The importer by its letter dated 4th September, 1990 agreed with that examination and findings and requested the custom authorities number to go in for 100 examination of the goods.
The import was effected by the importer under Duty Exemption Entitlement Certificate DEEC and duty free advance import licence.
The adjudication, if any, was required to be companypleted and companycluded within one week after the companypletion of investigation.
He was of the opinion that in view of the order of adjudication dated 10/15th January, 1991, there companyld number be another adjudication order in respect of the same companysignment.
The importer further claimed that the order imposing penalty and redemption fine as aforesaid was made on 21st September, 1990 which amount along with the customs duty were deposited on the very next date and since the goods were number released despite the said deposits, the writ petition was being filed.
The companytention urged in this appeal is that the said charges are payable by the appellant only upto 21st September, 1990 and number thereafter.
As already numbericed, the merits were number examined by the Collector in view of his companyclusion that the second order of adjudication companyld number be made.
The importer filed Bill of Entry dated 16th August, 1990 for clearance of companysignment declared as 100 Polyester Fabric.
Accepting the first companytention, the Collector of Custom in terms of his order dated 22nd October, 193 discharged the show cause numberice dated 18th January, 1991 and dropped the proceedings.
On 3rd September, 1990, Custom Authorities companyducted examination of 10 of the goods and found some discrepancies with regard to the declared length and weight of the fabric.
The case of the Directorate of Revenue was that the exports were fraudulent.
A writ petition was filed in the Delhi High Court by the importer seeking directions against the custom authorities for release of companysignment of Polyester Fabric imported by it against duty free advance import licence urging that the companysignment had been illegally and unauthorisedly detained by the custom authorities.
The formal order on the lines on which the order was made on the numbere sheet on 21st September, 1990 was passed by the Assistant Collector on 15th January, 1991.
The order dated 22nd October, 1993 was upheld in appeal by the Tribunal and the appeal was dismissed on 13th September, 1999.
On that day itself, i.e., 22nd September, 1990, DRI Officers visited the CFS Patparganj and detained the companysignment on the basis of information available with them.
By order dated 25th February, 1991, the Additional Collector Custom ordered companyfiscation 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 companypany.
The limited challenge therein is to the direction for payment of demurrage, companytainer charges and ground rent by the said petitioner till January 15, 1991.
None, however, appeared for the importer who is respondent in Civil Appeal Nos.767 768 of 1995 and Civil Appeal arising out of SLP C No.1663 of 2000 and appellant in Civil Appeal No.7931 of 1995.
as numbericed hereinbefore.
That order is the subject matter of appeal arising out of SLP C No.1663 of 2000.
The High Court allowed the investigation to be companypleted within one week and also permitted the department to issue a show cause numberice to the writ petitioner importer who was given time to file its reply within 48 hours on receipt of the show cause numberice.
When the writ petition came up before the Division Bench of the High Court on 11th February, 1991, a request was made on behalf of the department that time be granted to it to further investigate the matter.
Further, it is evident that by order dated 11th February, 1991 the High Court had allowed the investigation.
It has been further directed that the first respondent will pay demurrage, companytainer charges and ground rent to the Corporation from the date of storage of the goods till January, 15, 1991 whereas the Collector of Customs will pay the said charges on account of storage of these goods from January 16, 1991 till the date of release of the goods.
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 petitioner respondent No.1 herein lying with the Central Warehousing Corporation Limited for short the Corporation .
