COLLECTOR OF CUSTOMS Vs. ARVIND EXPORT (P) LTD.

JUDGEMENT

(1.) BRIEF facts of the case are that the respondents made an import of beef tallow and filed a Bill of Entry and sought clearance of the goods, in question, on the strength of additional licence dated 12 -3 -1981. On the date of issue of the import licence, beef tallow was under OGL and w.e.f. 5 -6 -1981, the beef tallow was placed in the list of canalised item under Appendix 8 of Import Export Policy. However, the licence was accepted by the Collector of Customs and clearance was allowed. The Central Board of Excise & Customs, in exercise of power, conferred under Section 129D of the Customs Act, called for the relevant record and after perusal, passed an order directing the Collector of Customs to make an application to Customs, Excise & Gold (Control) Appellate Tribunal under Section 129D of the Customs Act, 1962.

(2.) HEARD both sides.

(3.) THE contention of the importer is that order passed by the Collector (Customs) under Section 47 of the Customs Act, 1962 is only an administrative order and Section 129D of the Customs Act provides that "Board may, of its own motion or on the application of any aggrieved person or otherwise, call for and examine the record of any proceeding in which a Commissioner of Customs has passed any decision or order under Section 47 of the Act for the purpose of satisfying itself as to the correctness, legality or propriety of such decision or order. The contention of the importer is that before passing the order under Section 47 of the Act, no show cause notice was issued nor the order was conveyed to them, therefore, such order is not an order passed in adjudicating proceedings. Their submission is that mere filing of the Bill of Entry does not create a lis and on filing of Bill of Entry, the proper officer may agree with the importer or issue a show cause notice and pass adjudication order. In case where the proper officer is agreed with the importer and ordered the clearance of the goods and in absence of any lis, such order cannot be held to be an adjudication order. Further, the order was never served upon the importer and is only on the note sheet of the file. Therefore, the view taken by the Tribunal in the case of Metro Exporters (P) Ltd. (supra) is proper. He also relied upon the decision of Hon'ble Single Judge in the case of Bengal Tools Ltd. v. Additional D.G.R.I, reported in 1995 (77) E.L.T. 858 (Cal).