BHARAT CHANDRA BAG Vs. UNION OF INDIA (UOI)

JUDGEMENT

(1.) The present writ petition has been filed praying inter alia for a Writ of Mandamus commanding the respondents and particularly the Assistant Collector of Customs, Calcutta Airport to deliver the goods imported by him as fully described in Annexure 'B' to the writ petition. It is stated that the petitioner while coming back from Singapore carried with him electrical goods bought at Singapore and opted Red Channel for exit for Customs clearance. The Customs Authorities at the Airport made an inventory on December 10, 1989 of the goods imported out of which Serial Nos. 18 to 28 have been found to be not belonging to baggage items and the said items have been valued at Rs. 7,970. The value of the baggage was fixed at Rs. 9,835. However, after adjudication of the duty and imposition of fine by the Assistant Collector of Customs, Calcutta Airport, the Superintendent of Customs (Administration), Calcutta Airport refused to clear the imported goods of the petitioner on the alleged grounds that the petitioner's said imported goods are undervalued, notwithstanding the valuation, adjudication and imposition of duties and fine in lieu of confiscation made by the Assistant Collector of Customs, Calcutta Airport. Being aggrieved, the petitioner has come to the writ Court seeking reliefs as indicated above. A Supplementary Affidavit sworn on 14th of March, 1990 has since been filed placing on record that the petitioner has got a copy of the notice of appeal dated February 23, 1990 issued by the Collector of Customs and Central Excise (Appeals) purportedly under Sec. 129D(2) of the Customs Act addressed to the Assistant Collector of Customs, Calcutta Airport against the petitioner Bharat Chandra Bag and it is submitted that

(2.) The writ petition is contested by the respondent Nos. 1, 2 and 3. It is placed on record that the baggage contained non -baggage item viz. lighting equipment of professional nature and the items of the baggage were detained on the 7th of December, 1989 for valuation. The Baggage Officer valued the said goods and put the case papers before the respondent No. 3 the Assistant Collector of Customs, Calcutta Airport for effective adjudication. The respondent No. 3 referred the case to the Appraiser Cargo Complex and the Appraiser valued the items. An adjudication order was passed by the respondent No. 3 allowing the items on payment of redemption fine of Rs. 4,000. The petitioner allegedly paid duty and the redemption fine as per the adjudication order dated 13th of December, 1989. The respondent No. 3 received a phone call on the Special Intelligence Unit shortly after the payment of duty and fine was made by the writ petitioner asking him not to release the subject goods until further instructions. The Special Intelligence Unit informed that under -valuation took place in respect of the items in question. Since, the instant lighting equipments were not items of common imports invoice, price -lists could not be found on market enquiry. However, market sources contacted and time was consumed as the documents could only be collected from abroad. As the writ petitioner made an application for release of the goods, the goods were examined on the basis of the additional evidence as furnished by the Special Intelligence Unit. The respondent No. 2 Collector of Customs by a letter of authority authorised Assistant Collector of Customs, Calcutta Airport to file an appeal before the Collector of Customs (Appeals) under Sec. 129D(4) of the Customs Act as he was satisfied that the order was not proper. The Collector of Customs (Appeals) passed an order disposing of the appeal by holding, amongst others, that since the Assistant Collector of Customs, Calcutta Airport is himself an appellant and his power to adjudicate is limited upto Rs. 25,000 under Sec. 122 of the Customs Act, the order could not be sustained and as such he has set aside the adjudication order dated 13th December, 1989 passed by the respondent No. 3 and directed the Deputy Collector of Customs, Calcutta Airport to examine the matter afresh as soon as possible after giving a chance of hearing to the writ petitioner. He has further held that the Deputy Collector of Customs can decide about the quantum of fine and penalty to be imposed on the writ petitioner. Since the Court granted leave to the parties to file affidavit and supplementary affidavit, a comprehensive objection was filed denying the allegation made in the petition and justifying the order made in appeal before the Collector of Customs (Appeals) under Sec. 129D(4) of the Customs Act. The writ petitioner filed a reply challenging the decisions and orders affecting his right to get the goods released and reiterating the stand taken in the main writ petition.

(3.) Having heard the learned lawyers for both sides and upon perusal of the materials on record, it appears that admittedly the Assistant Collector of Customs, Calcutta Airport passed an order on 13 -12 -1989 allowing certain goods imported by the petitioner Bharat Chandra Bag valued at Rs. 8,585 and imposed a fine about Rs. 4,000 in addition to duty. Since the goods were not released in spite of adjudication, the writ petitioner has come to this Court. In the meantime, an appeal was filed by the Assistant Collector of Customs, Calcutta Airport against the aforesaid order. Leave was granted to challenge the impugned order in appeal. The Collector of Customs and Central Excise (Appeals) passed order dated 2nd March, 1990 has held that the value of several goods imported by the petitioner was declared and the same was assessed prima facie low and the same needs to be increased. Some of the price -lists annexed in the appeal petition revealed the higher value of such goods abroad. Since the goods are kept at the Airport the extent of such under -valuation may be determined after examining the goods physically. It has also been found that since the Assistant Collector of Customs himself is an appellant and his power to adjudicate is limited upto Rs. 25,000 under Sec. 122 of the Customs Act, it is for a different and higher authority to examine the valuation of the disputed goods. Accordingly, he has set aside the order dated 13 -2 -1989 passed by the Assistant Collector of Customs, Airport and the Deputy Collector of Customs at the Airport has been directed to examine the matter afresh after giving a chance of hearing to the appellant i.e. the Assistant Collector of Customs and to decide about the quantum of fine and penalty. This order is also seriously challenged by the writ petitioner before this Court. It is better to appreciate the scope of Sec. 129D(4) of the Customs Act, as it stands : -