Calcutta High Court
Rotoflex Industries vs Collector Of Customs on 3 August, 1990
Equivalent citations: 1992(60)ELT379(CAL)
JUDGMENT M.N. Roy, J.
1. Appellant No. 1, is a partnership firm, duly registered under the Partnership Act and Appellant No. 2, is the partner of the same. The said partnership firm at all material times carried on and still carries on business of importation of various packaging materials viz. poly porpylin (poly propylin packaging film). It has been claimed by the appellants that such importation of the packaging film of fixed qualities and sizes are made from several manufactures and shippers from U.S.A., U.K., West Germany and Belgium and after importing those goods, they are converted in accordance with the customers' specifications and requirements at the ancillary manufacturing unit of the appellants viz. Modern Controverter at Raichand Lane, on payment of necessary charges.
2. It was the case of the appellants that they are importing such materials regularly from United States, so also the diverse other European countries as mentioned above, with the knowledge and satisfaction of the concerned Customs authorities and they are also holders of several R.E.P. licenses. It was their case that on the basis of such licenses, importation of 60 pallets of the concerned goods, approximately valued at Rs. 11,36,560.47 was made from M/s. Mario International Corporation, U.S.A. (hereinafter referred to as the said foreign seller). It was their further case that on or about 28th July, 1988, the vessels MV Bengal Progress - Voy-121 Line No. 298 and Rotation No. 464 carrying the concerned goods arrived at the Port of Calcutta. It has been stated that before such arrival, on or about 12th July, 1988, the appellants through their clearing agent M/s. New India Corporation, Calcutta, filed the relevant Bill of Entry with all relevant and necessary papers and import licences, for assessment of the said goods for warehousing under Section 59 of the Customs Act, 1962 (hereinafter referred to as the said Act) and then, the concerned appraiser of Appraising Group-II Customs House, Calcutta, checked and verified and/or scrutinised all documents and import licenses as filed and passed the Bill of Entry for counter-signature of Assistant Collector of Customs, Appraising Group No. II, who, after reaching his complete satisfaction on necessary scrutiny, passed adjudication order under Section 47 of the said Act and assessed a sum of Rs. 2,60,22,613/- as duty, payable. It has also been stated that on or about 1st August 1988, the concerned Customs Authorities physically verified and checked the concerned goods and on being satisfied that they were as per declaration and description of the invoice duly cleared them and allowed the goods in question, to be stored in non-duty paid warehouse under Section 59 of the said Act.
3. The appellants have stated that they filed Ex-Bond Bill of Entry in respect of four pallets of the concerned goods and paid part of the assessed duty of Rs. 10,74,841/-, whereupon the Customs Authorities duly allowed clearance and released the said four pallets of the concerned goods under Ex-Bond Bill of Entry No. 1-1513 dated 21st November, 1989.
4. Thereafter, the appellants filed another Ex-Bond Bill of Entry, for clearance of four pallets of the concerned goods, whereupon the Customs authorities, on payment of the pro rata, part of the assessed duty of Rs. 10,74,841/- duly cleared and released four pallets of the concerned goods to the appellants under Ex-Bond Bill of Entry dated 25th January 1990.
5. It was the further case of the appellants that between 14th January 1989 and 23rd May 1989, they duly imported two further consignments of the concerned goods from U.S.A. and U.K. under similar R.E.P. licenses, duly transferred in their favour in the manner as indicated above and on arrival of the said two consignments, they also filed Bill of Entry for warehousing of the goods in question under Section 59 of the said Act, whereupon, the Customs Authorities duly assessed duty under Section 17 of the said Act, to the tune of Rs. 2,70,93,979/- and Rs. 50,60,257/- respectively. It has also been stated that on physical verification and checking of the goods and so also all the relevant documents, warehousing of the concerned goods, were directed under W.R. Nos. 334 and 2295 dated 24th January, 1989 and 25th May 1989 respectively. It was the case of the appellants that they filed diverse Ex-Bond Bills of Entry on diverse dates between 30th June 1989 and 25th January, 1990 for clearance and release of 80 pallets and 5 pallets, out of the said goods and the Customs Authorities upon payment of pro rata, a part of the assessed duty by the appellants, duly released the said 85 pallets of the concerned goods on necessary satisfaction, after checking the importation documents.
6. After this, on or about 13th December, 1990 the appellants filed two other Ex-Bond Bills of Entry for home consumption for release of 4 and 16 pallets respectively of the concerned goods, but this time, the Customs Authorities, according to the appellants, wrongfully refused to release the concerned goods and that too, without any justification.
7. It was the case of the appellants that between 25th July 1989 and 17th April 1990, they also imported 5 several consignments of the concerned goods from U.K., U.S.A. and West Germany under several R.E.P. licenses duly transferred in their favour in the manner as mentioned above and on arrival of the said goods, they duly submitted 5 Bills of Entry for warehousing under Section 59 of the said Act on diverse dates between 28th July 1989 and 17th April 1990 and according to them, on such filing the Bills of Entry, the Customs Authorities duly made provisional assessment in respect of five such consignments under Section 18 of the said Act. It was their case that after assessing the duty in respect of the said five consignments, the concerned Customs Authorities physically checked and verified the goods in question, which arrived under Rotation Nos. 380/89, 403/89, 716/89, 103/89 and 222/90 and found them in accordance with the specifications contained in the Invoices, Checking List and Bills of Lading. The appellants have stated that the goods in respect of the consignments were thereafter, allowed to be warehoused under Section 59 of the said Act. The particulars of the warehousing have been mentioned in the petition.
8. The appellants have stated that thereafter, on payment of pro rata, part of the assessed duty and the submissions of P.D. Bonds before the Customs Authorities, they obtained release of 9 pallets under Ex-Bond Bill of Entry No. 1-908 dated 30th November 1989, in respect of Ex-Bond Bill of Entry No. 3390 and 11 pallets under Ex-Bond Bill of Entry No. I-1249 and I-609 dated 27th November 1989 and 29th November 1989 respectively in respect of Ex-Bond Bill of Entry No. 3823.
9. The appellants have further stated that on or about 5th January 1989, they filed two Ex-Bond Bills of Entry for release of 10 and 11 pallets of the concerned goods respectively and the Customs Authorities, for reasons best known to them, refused to release the goods in question, without any warrant and justification.
10. Between 23rd April 1990 and 23rd November 1990, the appellants were served with four purported show cause notices in respect of the above-mentioned four consignments, which were provisionally assessed under Section 18 of the said Act, on identical allegations to the effect that the said goods as imported by the appellants, were of disposable nature. By those notices, the appellants were called upon to show cause to the Additional Collector of Customs within a stipulated time as to why the goods in question, should not be confiscated under Section 111(d) of the said Act and why penal action should not be initiated against them under Section 112 of the said Act. It has been stated that on 2nd March 1990, the appellants duly replied to the said show cause notices and therein, they dealt with and controverted all the allegations and it was specifically pointed out that the goods in question, were new and not disposable goods as alleged by the Customs Authorities apart from pointing out that the mere fact that the goods in question, had been purchased out of stock lot, can by no means lead to the logical conclusion that they were disposable goods and it would be highly erroneous to allege that there has been any violation of any of the provisions of the Import (Control) Order, 1955 or there is any scope of applying Section 111(d) of the said Act in the facts of this case. No doubt, on or about 14th March 1990, a personal hearing was given, wherein, submissions were made by the appellants before the Additional Collector of Customs.
11. It was also the case of the appellants that apart from the consignments as mentioned hereinbefore, two fresh consignments in respect of the concerned goods were also shipped by the said foreign suppliers and the appellants were re-served with four other identical letters dated 10th April 1990 from the Assistant Collector of Customs for Import Bond Department and there were notice of detention and for sale of warehoused goods in terms of Section 72(2) of the said Act. It has been stated that in the said notices, it was alleged inter alia amongst others that the appellants have not discharged demand notice issued under Section 72(1) of the said Act and it would appear that the request as made by them, for granting further time could not be acceded to and they were informed further that the goods so imported, are detained under Section 72(2) of the said Act, with a view to recover duty, interest and other charges payable thereon or as demanded. It was also stated that if the sale proceeds of the concerned goods were not found sufficient enough to cover the full amount of duty, interest and warehouse rent payable, then the appellants would also be liable to pay deficit amount, in terms of the bond executed by them and if they fail to make such payment, an action as provided under the said Act would be initiated. Apart from the illegality and irregularities as mentioned by the appellants, it was claimed by them that Customs Authorities in the instant case were determined to harass and victimise them with some ulterior motive.
12. It was also claimed by the appellants that the goods in question, were covered under the provisions of Imports (Control) Order, 1955, since they were new goods and were purchased by the appellants out of stock lot. The relevant provisions of Clause 5(3)(iii) of the said Order of 1955 may be quoted as under :-
"5. Conditions of Licences : (1) The licensing authority issuing a licence under this Order may issue the same, subject to one or more of the conditions stated below:
(3) It shall be deemed to be a condition of every such licence that :-
...
(iii) the goods for the import of which a licence is granted shall be new goods, other than disposal goods unless otherwise stated in the licence. It was also the case of the appellants that since the Customs Authorities had released and were releasing part of the consigned goods on final assessment made under Section 68 of the said Act and the goods in question, were lying at the bonded warehouse under the control and custody of those authorities, so they made representation on diverse dates for release of the goods in question, in respect whereof, Ex-Bond Bills of Entry were filed by them and in those representations, it was further pointed out that owing to unusual delay in releasing the Ex-Bond Bills of Entry for clearance of the concerned goods after due payment of customs duty, the appellants were required to bear the increasing interest burden which has ultimately affected and is affecting the cash flow of the appellants in their business and in such circumstances, they were compelled to keep the concerned goods warehoused even at the cost of substantial loss of business."
13. The appellants have given instances where clearances were allowed under the provisions of the said Act or the Imports (Control) Order, 1955. But it was claimed by them now appearing through Mr. Mullick, that the subsequent imposition of restrictions were improper.
14. It would appear that the learned Trial Judge on 18th May 1990 made the following order :-
THE COURT : Having heard Mr. Chatterjee for the petitioner and Mr. Sengupta for the customs authorities and considering the materials on record it appears that the grievance of the petitioner is that the impugned show cause notices dated 28-3-1990, 9-3-1990 and 25-4-1990 being Annexure 'G' series are all bad in law. It has, however, appeared that the petitioners have filed the replies and appeared before the adjudicating authorities. Their further grievance is that instead of passing the order of adjudication the matter has been delayed to the prejudice of the petitioners.
Mr. Sengupta, however, submits that besides the impugned show cause notices there are other show cause notices for which the petitioners have not replied. This is no unnecessary delay in disposing of the case by way of passing the order of adjudication. However, considering the submissions as made above this Court disposes of the writ application by directing the respondent authorities to complete the adjudication proceedings and pass the final order within 4 weeks from the date of communication of this order relating to the show cause notices as referred to in the present writ petition. It is made clear that this Court has not considered the merits of the case and if the petitioners are otherwise aggrieved by the order of assessment they can challenge the same as provided in law in the appropriate forum.
All parties will act upon the signed copy of this Dictated Order on the usual undertaking.
15. In this application which was filed in the appeal preferred against that order, Mr. Mullick reiterated the submissions as referred to hereinbefore and stated that the authorities concerned have not and are not acting in the matter bona fide. It was pointed out by him that the details of consignments have been mentioned in pages 51, 52 and 74 of the application and the total duty assessed thereon, is Rs. 1,27,31,444/- and out of that an amount Rs. 29,99,913/- has been paid as duty. Thus, leaving a balance of duty payable at Rs. 97,31,531/-. He further indicated on instructions that his clients were agreeable to pay such balance of duty and have the concerned goods released. It was further pointed out by him that on the basis of adjudication orders a sum of Rs. 4,85,0007- has been assessed as redemption fine in respect of three consignments of 8th March 1990, 28th February 1990 and 9th March 1990 and such fine in respect of the 4th consignment of 24th April 1990 has not as yet been assessed. He on instructions stated further that the assessed amount of redemption fine to the tune of Rs. 4,85,000/- would be paid by the appellants through Bank guarantee and such being the position, the Customs Authorities would not suffer any prejudice even all the goods are released.
16. It should be noted that the matter was last heard on 9th July 1990 and the same was adjourned to 16th of July 1990 and the Court was thinking of passing an order in terms as indicated earlier. Upto that date, four show cause notices were required to be adjudicated and in respect of three consignments as mentioned in the last column of page 52 and those mentioned in page 74, no show cause notices were issued. But, on 16th July 1990, it was pointed out to the Court that show cause notices have been issued not only for the last three consignment as mentioned above, but also for the balance goods contained in the pallets which were covered by the particulars of goods lying in bond, provisionally assessed under Section 16 of the said Act as mentioned in page 52 of the application. Such action, was claimed by Mr. Mullick to be improper, irregular, void and not bona fide and was intended to avoid the orders, which were to be made by this Court. Mr. Das, of course, stated that the order as made by this Court could not have any bearing so far the subsequent show cause notices were concerned and such show cause notices had to be issued as under the said Act, the authorities, if necessary, would be entitled to have the subject goods confiscated.
17. In support of his submissions, Mr. Mullick referred to the case of Jain Shudh Vanaspati Ltd. and Anr. v. Union of India and Ors. - , which, while dealing with Section 47 of the said Act and the scope of the same has observed that under Section 47 of the Customs Act, 1962 the Customs Officer shall allow clearance of the goods if he is satisfied that the import of goods is not prohibited. Therefrom the goods were cleared under Section 47, it can be said that the proper officer's satisfaction regarding 'prohibited goods' had reached finality unless it is shown successfully that there was fraud or deliberate suppression of facts. The contention that the containers were printed and the original identity of the drums was suppressed by the petitioners, does not lead to such conclusion and while dealing with the scope of Sections 47, 28 and 124 has indicated that once the goods have been cleared by the Customs authorities after physical verification and check up under Section 47 of the Customs Act, the issuing of show cause notice for short levy and confiscation amount to revision of order passed under Section 47 of the Act which can only be done by the Collector or the Central Board of Excise and Customs under Section 130 ibid. Therefore, the show cause notice issued under Section 28 and 124 ibid was contrary to law and invalid. He also submitted that any change of view, for which the subsequent orders were passed, would be contrary to the observations made in the case of J.K. Synthetics and Anr. v. Union of India and Ors., , which has indicated that an order passed by a Court of law or revisionary authority is final and conclusive qua the parties. Therefore, it is not open for the Central Excise Authorities to change their stand capriciously and put the assessee to avoidable inconvenience and harassment, if the position is exactly the same legally and factually as it was on an earlier occasion, apart from laying down the guidelines for revising an earlier decision by the appellate and revisionary authorities under Sections 35, 35A and 36 of the Act and also indicating that the principle of resjudicata or estoppel is not applicable to tax matters thus the view taken by the assessee or appellate, revisional authority or even the High Court in respect of any one assessment period will not be final and conclusive for subsequent assessment period but such earlier decisions should be a cogent factor in the determination of the same point in subsequent assessment period. Further reference was made by Mr. Mullick to the case of Union of India and Ors. v. Popular Dyechem, which indicated that once the goods have been cleared by the Customs authorities after physical verification and check up under Section 47 of the Customs Act, 1962, confiscation of the goods amount to revision of order passed under Section 47 of the Act which can only be done by the Collector or the Central Board of Excise and Customs under Section 129D ibid. In the instant case, the order of clearance has been made by the Assistant Collector after physical verification under Section 47 such goods cannot be confiscated in the absence of order passed in Revision under Section 129D of the Customs Act, and above being the position and since the authorities concerned would not be appropriately authorised to act on such or any change of view, specially in a case of the present nature, when on similar set of facts, they have directed release of several pallets of the consigned goods and the appellants have taken delivery of them on the basis of such terms as imposed.
18. The conduct of the authorities concerned in the instant case as indicated earlier and more particularly when, such action in respect of some of the concerned pallets of the consigned goods have been taken, cannot be appreciated and there is justification in the submissions of Mr. Mullick that the subsequent actions as indicated were taken to frustrate the proceedings pending in this Court and the orders which at one point of time, the said authorities had practically agreed to accept. We are however not required to decide at this stage on the said point, but we certainly and with all emphasis on our power, depreciate the action as taken.
19. As such, we direct that Mr. Mullick's clients will be entitled to release of the goods as mentioned in pages 51, 52 and 74 on payment of duty and also on furnishing a Bank quarantee for the sum of Rs. 4,85,000/-, which has been imposed on account of redemption fine against the three consignments as mentioned earlier. We of course allow the Customs Authorities to continue with the show cause notices and complete them. But, they are restrained from passing any final order and we kept it on record that if any confiscation order is passed by them, the validity, propriety or otherwise of them, would be decided after hearing the appeal finally. We also keep it on record that it is needless to point out that while making the determination now and in terms of this order, the authorities concerned, should act in accordance with law and not otherwise.
20. The application thus succeeds to the extent as indicated. There will be no order as to costs.
21. In the circumstances of the case we feel that the hearing of this appeal should be expedited and we thus order that paper-books, typewritten or cyclostyled, incorporating all relevant and necessary papers be filed by six weeks from today. Filing of index is dispensed with and we also keep it on record that service of notice of appeal is waived by Mr. Das's junior. We further keep it on record that while making this order, we have not considered the points as raised or urged on merits and we have not made any final determination at this interlocutory stage. We also keep it on record that since we have not considered any point on merits, all points as taken, are kept open, for being adjudicated during the course of hearing of the appeal.
We, however, have it on record that the Customs Authorities should try to have the pending proceedings disposed of within eight weeks from the date of communication of this order.
All parties concerned including the Customs Authorities to act on a signed copy of the operative part of the judgment.