TIRUPATHI PLASTICS Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner challenges an order of adjudication dated 26-9-1991.

(2.) THE Petitioner filed bill of entry 24941 dated 30-7-1991 for the clearance of 13. 8 Metric tonnes of Cellulose Acetate Cuttings. THE goods were sought for clearance on the strength of invoice showing the value US $ 250 per MT raised by the suppliers. However, as per the recorded prices, the value was enhanced to US $ 280 per MT with importers' concurrence and the bill of entry was assessed. Subsequently, the goods were examined by Dock Inspection Staff on 14-8-1991. As per the Inspection Report it is found that 1.132 M.T. consist of concealed items like that of new spectacle frames made of Plastic, Plastic sheets decorative on both sides, Plastic granules, Plastic floor sweepings and sun glass. By letter dated 23-8-1991, the petitioner has stated that only one ton out of the quantity of 13. 8 tons contained the mixed up items and also requested that the said goods may be allowed to be cleared after mutilation. THE petitioner has also requested for personal hearing before decision without issue of show-cause notice. A personal hearing was given. By the impugned order, the Additional Collector of Customs, Madras, the third respondent herein has held that the concealed items weighing 1.132 M.T. are liable to be confiscated under Section 111(m) and (1) of the Customs Act, 1962, that 12. 668 M.T. of Cellulose Acetate cuttings also are liable to be confiscated as they are used for concealing of the other goods, the non-declared goods. Apart the order of confiscation, a redemption fine of Rs. 1, 00, 000/- has been levied under Section 125 of the Customs Act. Personal penalty of Rs. 50, 000/- has also been imposed under Section 112 of the Customs Act. THE petitioner challenges this order.

(3.) A counter-affidavit has been filed by respondents. After narrating the facts, it is claimed in the counter-affidavit that a remedy has been provided under the Customs Act and without exhausting the same, the petitioner should not be allowed to file a petition under Article 226 of the Constitution of India. It is also claimed that the petitioner is not entitled for mutilation under Section 24 of the Customs Act and that there are no rules or notifications issued in this behalf for the subject materials to be mutilated as provided under Section 24 of the Customs Act, 1962. It is also stated that the practice of assessment of goods on the basis of documents is to facilitate the importers to take delivery of the goods if they agree with the declarations at the time of examination by the Dock Staff who would be giving 'Pass Order' in terms of Section 47 of the Act, and that when the undeclared goods found concealed with declared goods and the offending goods of weight of 900 kgs are appraised at the value of Rs. 5, 85, 000/-, that the petitioner requested for an order of adjudication and that the adjudication order dealt with the case after giving personal hearing to the petitioner. It is further claimed in the counter- affidavit that the petitioner is not entitled for any release since it has not declared certain items by concealing the same in order to avoid payment of duty for certain concealed articles. It is further claimed in the counter-affidavit that the goods imported without declaration are liable for confiscation under the provisions of the Customs Act, and that the order of adjudication has been since passed, the petitioner may be directed to comply with the said order for getting release of the goods. It is further claimed that the department had no other option but to make assessment for the undeclared goods, and that the decisions rendered by Courts fully concur with the department's action for detention that even if the goods were assessed when there was suppression of facts in disclosure of goods properly. It is further claimed in the counter-affidavit that the importation will not come under the purview of Section 28 of the Customs Act, that the present case is one where there are undeclared goods along with the declared items, concealed and that the same was unearthed on examination only and before giving pass orders. It is further claimed that prior to giving pass order, the misdeclaration and non-declaration of goods were noticed and as such the pass order was not given. It is further stated that the adjudication was made properly on assessment of the goods declared.