PHOTON INDIA LIMITED Vs. ASSISTANT COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) By consent of parties the writ petition itself is taken up for final disposal. The petitioner is a company carrying on business in the purchase of paper in rolls, cutting the same and selling the paper. For this purpose he had arranged for the purchase of a second hand paper-cutting and slitting machine from West Germany. The machine was shipped from Germany on 19.12.1992 and arrived at the Madras Port Trust on 19.1.1993. A bill of lading (sic bill of entry?) for home consumption was filed by the petitioner with the second respondent. Since there was delay in assessment of duty the goods were stored in bond under the provisions of Section 49 of the Customs Act.

(2.) By an order dated 8.3.1993, the Additional Collector of Customs (Appraising Department), the second respondent herein, held that the import of the subject goods was illegal because there was no proper import licence for the import. Consequently, he directed confiscation of the subject goods under Section 111(d) of the Customs Act, 1962 read with Section 3(2) of the Imports and Exports (Control) Act, 1947, giving an option to the importers to redeem the goods on payment of a sum of Rs. 1,00,000/-. This is further subject to the payment of the duly. The value of the machine was assessed at Rs. 8,99,104/- c.i.f. and the containers were assessed at Rs. 90,000/-. There was no other penalty imposed Under the order. The petitioner filed an appeal and by an order dated 24.6.1993 the Appellate Collector upheld the contentions of the petitioner and set aside the order of the Additional Collector. In doing so, the appellate authority held that the invoice value claimed by the petitioner was to be accepted. The duty is payable under heading 8441.10 read with notification No. 59/87. It was also directed that the cost of the container should not be assessed separately.

(3.) On the basis of the appellate order, the petitioner approached the first respondent for clearance of the goods and for payment for duty in accordance with the said appellate order. According to the petitioner, the first respondent declined to permit the petitioner to clear the goods on the ground that the first respondent was proposing to file an appeal against the order of the third respondent. The case of the petitioner is that the question of clearance of goods cannot brook any further delay and at any rate cannot wait till the first respondent actually files an appeal. The appellate order is binding on all the parties, and therefore, the petitioner is entitled to clear the goods in terms of the appellate order.