ORDER
Mishra, J.
1. This appeal, under Clause 15 of the Letters Patent of this Court, is directed against the judgment of Kanakaraj, J., in W.P.No. 3880 of 1991. The petitioner/appellant is the company engaged in importing of stainless steel melting scrap. It has got L-4 licence under the Central Excises and Salt Act, 1944 for manufacturing ingots after melting such imported stainless scrap. In or about February, 1991, according to the petitioner/appellant, its Managing Director contacted one Ashinkumar Kamdar, who was known as Indentor as well as Import Consultant in field of iron and steel and other allied products, and informed him that the petitioner/appellant company would like to import stainless steel scrap at a competitive price. Kamdar suggested to import such scrap materials and also promised to help in securing materials. Thereupon, Kamdar floated enquiries and procured an officer from an exporter of Singapore by name K. Ramanlal & Co., Private Limited. Accordingly, it is said that 500 metric tonnes of stainless steel scrap were agreed to be supplied by K. Ramanlal & Co., Private Limited of Singapore, who offered to ship 120 metric tonnes out of which, 90 metric tonnes would be coil-ends and the remaining 30 metric tonnes would be general scrap and shipped the said goods under its invoice dated 14-2-1991 by six containers from Singapore to Madras. The said goods arrived at the Madras port per Vessel WASPADA VOY 9012, covered by a Bill of Lading dated 14-2-1991. On landing of the said goods, the petitioner/appellant company filed the Bill of Entry for home consumption for the clearance of the goods. The said goods were thereafter examined by the officers of the respondents as per the normal practice of 20% check, who, after necessary examination, assessed the goods for duty by an order under Section 47 of the Customs Act, 1962 (hereinafter referred to as 'the Act'). After the order four out of the six containers were cleared from the port premises and were stored at a godown belonging to one Gemini Warehousing. It was at this stage that respondents 3 and 4 carried out certain seizure and ultimately, seized the two containers in the port area as well as the goods removed to the warehouse, under a seizure warrant. Questioning the validity of the said seizure, the petitioner/appellant company contended inter alia that once the imported goods were cleared under Section 47 of the Act, unless the order thereunder was reversed, no action could be taken either under Section 110 or under Section 111 of the Act and in any event, if there was any logical value of any suspicion of the third and the fourth respondents that the goods were likely to be used for any other purpose, they could act under Section 24 of the Act and order mutilation of the said goods to render them unfit for any other purpose other than melting. After going into the above statements and other contentions raised on behalf of the petitioner/appellant, Kanakaraj, J., has said :
'..... So long as the proper officer has reasonable belief under Section 110 of the Act, I am of the view that the seizure must be upheld, as to the nature and the action that the respondents may take by issuing a show-cause notice. It is to be seen only hereafter. Whether such an action will be hit by lack of power to review an earlier order or whether the respondents have an independent power to issue show-cause notice and adjudicate on the matter under independent provisions of law are matters which will have to be seen only hereafter. All that I am laying down is that the authorities have the power of seizure in fit and proper cases. If such a power is not recognised, the implementation of the Act itself, will become difficult. The argument that the respondents ought to have been careful before examining the case and before making the assessment is no doubt attractive. But in a given case, if a mistake has occurred or due to circumstances beyond the control of the proper officer, some of the containers had missed their examination, it does not mean that the importer can run away with the inadequate assessment that was made. I make it clear that I am not rendering a finding, but it is according to the respondents that an inadequate assessment was made based on the goods being melting scraps whereas they are actually stainless steel sheets, the difference in duty is colossal. Should the revenue of the State and the economy of the country suffer because of the genuine mistake or an omission due to circumstances beyond his control made by the proper Officer.
The argument that such mistakes can be corrected only by resorting to Section 129-D of the Customs Act does not appeal to me, because we are only concerned with seizure of goods. The questions whether the proper officer has jurisdiction to seize the goods. In most of these revenue matters relating to Customs and Central Excise, once the goods go out of the hands of the officers then the chances of recovery are either remote or nil. It is in this view of the matter, I am upholding the seizure of the goods in the instant case. The respondents are permitted to initiate auction in accordance with law, but I direct that such action should be expedited, because the goods had once been cleared under Section 47 of the Customs Act and the petitioner cannot wait for eternity to have custody of their goods .....'
2. Before we deal with the contentions that have been raised before us on behalf of the petitioner/appellant company, since detailed arguments have been advanced as to the meaning, extent and reach of the provisions in Sections 24, 47 110 and 111 of the Act, we propose to extract them in full :
'24. Power to make rules for denaturing or mutilation of goods. - The Central Government may make rules for permitting at the request of the owner the denaturing or mutilation of imported goods which are ordinarily used for more than one purpose so as to render them unfit for one or more of such purposes; and where any goods are so denatured or mutilated they shall be chargeable to duty at such rate as would be applicable if the goods had been imported in the denatured or mutilated form.
47. Clearance of goods for home consumption. - Where the proper officer is satisfied that any goods entered for home consumption are not prohibited goods and the importer has paid the import duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance of the goods for home consumption.
110. Seizure of goods, documents and things. - (1) If the proper officer has reason to believe that any goods are liable to confiscation under this Act, he may seize such goods :
Provided that where it is not practicable to seize any such goods, the proper officer may serve on the owner of the goods an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer.
(1-A) The Central Government may, having regard to the perishable or hazardous nature of any goods, depreciation in the value of the goods with the passage of time, constraints of storage space for the goods or any other relevant consideration, by notification in the Official Gazette, specify the goods or class of goods which shall, as soon as may be after its seizure under sub-section (1), be disposed of by the proper officer in such manner as the Central Government may, from time to time, determine after following the procedure hereinafter specified.
(1-B) Where any goods, being goods specified under sub-section (1-A), have been seized by a proper officer under sub-section (1), shall prepare an inventory of such goods containing such details relating to their description, quality, quantity, mark, numbers, country of origin and other particulars as the proper officer may consider relevant to the identity of the goods in any proceeding under this Act and shall make an application to a Magistrate for the purpose of -
(a) certifying correctness of the inventory so prepared; or
(b) taking in the presence of the Magistrate, photographs of such goods, and certifying such photographs as true; or
(c) allowing to draw representative samples of such goods, in the presence of the Magistrate, and certifying the correctness of any list of samples so drawn.
(1-C) Where an application is made under sub-section (1-B), the Magistrate shall, as soon as may be, allow the application.
(2) Where any goods are seized under sub-section (1) and no notice in respect thereof is given under clause (a) of Section 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized :
Provided that the aforesaid period of six months may, on sufficient cause being shown, be extended by the Collector of Customs for a period not exceeding six months. (3) The proper officer may seize any documents or things which, in his opinion, will be useful for, or relevant to, any proceeding under this Act.
(4) The person from whose custody any documents are seized under sub-section (3) shall be entitled to make copies thereof or take extracts therefrom in the presence of an officer of customs.
111. Confiscation of improperly imported goods, etc. - The following goods brought from a place outside India shall be liable to confiscation -
(a) any goods imported by sea or air which are unloaded or attempted to be unloaded at any place other than a customs port or customs air-port appointed under clause (a) of Section 7 for the unloading of such goods;
(b) any goods imported by land or inland water through any route other than a route specified in a notification issued under clause (c) of Section 7 for the import of such goods;
(c) any dutiable or prohibited goods brought into any bay, gulf, creek or tidal river for the purpose of being landed at a place other than a customs port;
(d) any goods which are imported or attempted to be imported or are brought within the Indian customs waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force;
(e) any dutiable or prohibited goods found concealed in any manner in any conveyance;
(f) any dutiable or prohibited goods required to be mentioned under the regulations in an import manifest or import report which are not so mentioned;
(g) any dutiable or prohibited goods which are unloaded from a conveyance in contravention of the provisions of Section 32, other than goods inadvertently unloaded but included in the record kept under sub-section (2) of Section 45;
(h) any dutiable or prohibited goods unloaded or attempted to be unloaded in contravention of the provisions of Section 33 or Section 34;
(i) any dutiable or prohibited goods found concealed in any manner in any package either before or after the unloading thereof;
(j) any dutiable or prohibited goods removed or attempted to be removed from a customs area or a warehouse without the permission of the proper officer or contrary to the terms of such permission;
(k) any dutiable or prohibited goods imported by land in respect of which the order permitting clearance of the goods required to be produced under Section 109 is not produced or which do not correspond in any material particular with the specification contained therein;
(l) any dutiable or prohibited goods which are not included or are in excess of those included in the entry made under this Act, or in the case of baggage in the declaration made under Section 77;
(m) any goods which do not correspond in respect of value or any other particular with the entry made under this Act or in the case of baggage with the declaration made under Section 77 in respect thereof;
(n) any dutiable or prohibited goods transitted with or without transhipment or attempted to be so transitted in contravention of the provisions of Chapter VIII;
(o) any goods exempted, subject to any condition, from duty or any prohibition in respect of the import thereof under this Act or any other law for the time being in force, in respect of which the condition is not observed unless the non-observance of the condition was sanctioned by the proper officer;
(p) any notified goods in relation to which any provisions of Chapter IV-A or of any rule made under this Act for carrying out the purposes of that Chapter have been contravened.'
It may be relevant to notice that with regard to confiscation of improperted goods, besides confiscatio improperly imported goods as defined in Section 111 of the Act, there are provisions for penalty for improper importation of goods, etc.,as prescribed under Section 112 of the Act, including a provision for penalty for contravention, etc., not expressly mentioned, as provided under Sec. 117 of the Act. Sec. 124 of the Act provides for issuance of show-case notice before confiscation of goods, which inter alia states that no order confiscating any goods or imposing any penalty on any person shall be made unless the owner of the goods or such person is given a notice in writing informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty; is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation or imposition of penalty mentioned therein; and is given a reasonable opportunity of being heard in the matter, provided that the notice referred to in clause (a) of Section 124 of the Act and the representation referred to in clause (b) of the same section may, at the request of the person concerned, be oral. Chapter XV of the Act contains provisions for appeal to Collector (Appeals), procedure in appeal, appeal to Appellate Tribunal, procedure of Appellate Tribunal, powers of Board or Collector of Customs to pass certain orders, powers of revision of Board or Collector of Customs in certain cases, revision by Central Government, etc., including in certain types of cases, reference to the High Court on any question of law arising out of the orders of the Appellate Tribunal, etc.
3. We do not think that it will be of any assistance to us in determining the questions raised before us by learned counsel for the petitioner/appellant to refer to any of the statements in the counter-affidavit filed on behalf of the respondents. We shall, however, refer to certain facts brought on the record of this case on behalf of the respondents, while dealing with one of the ancillary questions in respect of the type of goods imported by the petitioner/appellant company. It is not in dispute and indeed it cannot be disputed that an order under Section 47 of the Act is quasi-judicial order. The proper officer, before clearance of goods for home consumption, is required to be satisfied that the goods entered for home consumption were not prohibited goods and the importer had paid the import duty, if any, assessed thereon as well as any charges payable under the Act in respect of the same. This order shall thus be a good evidence to show that the imported goods were for home consumption and were not prohibited goods and the importer had paid the import duty, if any, as well as any other charges payable under the Act in respect of the same. The language in Section 110 of the Act, however, should not be mistaken to give some sort of an administrative power to the proper officer to seize any goods because the words therein are, 'has reason to believe that any goods liable to confiscation under this Act'. Unless the goods are liable to confiscation and there is some basis to believe that such goods liable to confiscation under the Act were in the hands of some one or some where, it is obvious that there can be no seizure. Amongst the goods liable for confiscation, as in Section 111 of the Act, are : 'any dutiable or prohibited goods required to be mentioned under the regulations in an import manifest or import report which are not so mentioned' and 'any dutiable or prohibited goods found concealed in any manner in any package either before or after the unloading thereof'. It is not disputed before us that the goods seized from the custody of the petitioner/appellant are dutiable. It is disclosed in the counter-affidavit :
'.... Measurement of the sheets clearly described at the beginning of page 5 of Mahazarnama by stating that the rectangularly shaped stainless steel sheets of foreign origin measuring between 17' x 6' (49 x 154 cms.) and 50' x 132' (127 x 36 cms.) and at the bottom portion of the same page of the Mahazarnama, it is clearly stated that the rectangular shaped stainless steel sheets of the above-said measurement are not stainless steel melting scrap as declared by the importers in the Bill of Entry .....'
Thus, according to the respondents, they seized such goods, which, according to them, were rectangularly shaped stainless steel sheets and not stainless steel melting scrap. According to them, the petitioner/appellant never paid the requisite duty to import stainless steel sheets of foreign origin, as in its papers, including the import manifest, it had mentioned the goods as stainless steel melting scrap and not stainless steel sheets.
4. Learned counsel for the petitioner/appellant has contended that it is not open to the respondents to name the goods cleared under Section 47 of the Act as any thing else than stainless steel melting scraps and if they have any jurisdiction to proceed against such goods, that will be available to them only after the order under Section 47 of the Act is reversed. He has, for this proposition, placed reliance upon a Division Bench judgment of the Bombay High Court, in Union of India v. Popular Dyechem : 1987(28)ELT63(Bom) , which in turn relied upon a judgment of the Delhi High Court to state :
'The only goods which remain now to be cleared are goods in respect of which it was contended by the appellants that the same were not plastic scrap but serviceable plastic articles when imported whereas the respondents contended that the said goods were plastic scrap. The order of clearance under Section 47 was passed by the Assistant Collector concerned after physical verification of the goods. In view of this and in view of the decision of a Division Bench of the Delhi High Court reported in Jain Shudh Vanaspati Ltd. and Other v. Union of India and Others : 1982(10)ELT43(Del) , it is clear that such goods cannot be confiscated except in contemplation of an order or in pursuance of an order passed in revision under Sec. 129D of the Customs Act, 1962. No such order has been passed till today. In these circumstances, no interference with the trial Court's order is called for, except that we direct that in respect of the aforesaid disputed goods the appellants-respondents shall comply with the interim order by 4.0 p.m. on 15th December, 1986, unless proceedings are taken under Sec. 129D of the Customs Act before that time and appropriate orders to the contrary are passed therein.'
We have been informed that faced with the order as above, the Customs officials preferred a revision under Section 129D of the Act forthwith and in fact, the order under Section 47 of the Act was reversed, but when the revisional order was challenged again before the Bombay High Court, it found that the respondents therein had acted in violation of the principles of natural justice in utter haste only to defeat the direction of the Court. Thus, even that attempt of the Customs authorities to get the order under Section 47 of the Act reversed in revision failed and the goods which were cleared as plastic scraps were released as such goods, even though according to the Customs authorities, they were serviceable plastic articles and thus chargeable to duty under a separate head. As the Bombay High Court stated an omnibus rule that once it is found in respect of any goods that it had been released after clearance under Section 47 of the Act, no action to seize or confiscate could be taken. To understand the real import of the Bombay Court judgment thus, one has to see the Delhi High Court's judgment in Jain Shudh Vanaspati Ltd. and Others v. Union of India and Others : 1982(10)ELT43(Del) supra. Jain Shudh Vanaspati Ltd., had imported edible oil in stainless steel containers. The import of stainless steel as a consumer item was banned and prohibited at the relevant time. But under the relevant rules and instructions, the goods which were permitted to be imported under Open General Licence were also permitted to be imported incontainers. The question thus before Court for determination was, whether the stainless steel drums, which were used for importing palm oil by the petitioner therein were imported as a separate item of stainless steel or were imported as mere containers for the palm oil and thus, was there any violation by such import of the prohibition by the petitioner. The Delhi High Court, on such facts said :
'It might sound anomalous that stainless steel as such is prohibited item but stainless steel containers for carrying permitted goods are not. It can even be said that this is a lacuna in the law as it stood on the date of the importation in the present case. But neither the Department nor the Court can fill this lacuna by stretching the language of law. We are interpreting a taxing statute and subjecting a citizen to a possibility of very heavy customs duties, and other harsh penalties under the Customs Act ......'
Coming to Section 47 of the Act, the Court said :
'An order under Section 47 is one of the orders against which a revision can lie under Section 130 of the Act. Section 130 required that before revising any order, party affected, should be heard. It is thus clear that the Act does not provide for any review of an order passed under Section 47 of the Act. Admittedly there is no order passed by the concerned authorities under Section 130 of the Act. Respondents however, contend that notices under Section 28 or Section 124 are not in nature of review. They further contend that power to issue such notices is an independent power and can be issued even after the goods are cleared under Section 47. Respondents rely upon a judgment of the Calcutta High Court reported in : AIR1961Cal616 . This ruling is of no assistance to the respondents. The said decision was rendered on interpretation of Section 89 of the Sea Customs Act which is different from Section 47 of the Customs Act, 1962, in material particulars. So also the Sea Customs Act did not contain any provision of revision similar to Section 130 of the Customs Act. Section 89 of the Sea Customs Act can be noted in this context :'
After referring to the object and reasons of the Customs Bill, 1962, which read :
'Clause 47 corresponds to existing Section 89 with an amendment which provides specifically that the officer shall allow clearance of the goods, if he is satisfied that the import of the goods is not prohibited.'
the Court observed as follows :
'Considering Section 47 of the Customs Act in the light of the legislative history, we are clear that the section attaches finality to the satisfaction of the officer that the goods are not prohibited. The finality cannot be disturbed unless the department successfully shows that there was fraud or deliberate suppression. The respondents have alleged that the containers were painted and thus the original identity of the drums was suppressed by the petitioners. This allegation is on the assumption that stainless steel drums was a prohibited item. We do not agree. The law as it then stood, did not require of an importer to disclose the nature of the material or the price of the containers. A new requirement in this regard was introduced for the first time by public notice dated September 6, 1979 i.e., after the importation of oil by the petitioner. We, therefore, hold that the proper officer's satisfaction that the goods were not prohibited goods, had reached finality by the time the goods were cleared.'
The two judgments thus read together state that : (1) an order under Section 47 of the Act determines that the goods are not prohibited and that it has been cleared of duty payable on it; (2) an order under Section 47 of the Act is final; (3) the finality cannot be disturbed unless the Department successfully shows that there was fraud or deliberate suppression; and (4) this finality, however, will give way to the appellate or revisional order. We may, however, take notice of one important fact that in our view will substantially distinguish the case on hand with the cases decided by the Delhi and Bombay High Courts. In the Bombay Court judgment, even though all the relevant facts are not available, yet, it is possible to find that the Assistant Collector who cleared the goods under Section 47 of the Act had done so after physical verification of the goods and yet a certain proceeding to confiscate the goods had been started. In the case before the Delhi High Court, notices under Section 28 and 124 of the Act had been issued and they were under challenge, which shows that proceedings for confiscation had already been initiated and along with the proceedings for confiscation, notice for payment of duty short-levied had also been issued. With a little difference in the facts, but nonetheless relevant for understanding the legal position, we have a judgment of this Court in A. Subbaraj and Another v. Union of India, represented by the Asstt. Collector of Customs, Madras - 1 (W.P. Nos. 5296 of 1973 etc., a judgment by Ismail J., (as he then was) dated 22-10-1973). That was a case in which one Perumal Naidu had applied to the Joint Chief Controller of Imports and Exports, Madras, seeking information about the current policy regarding the export of Bone Meal to overseas countries. By a letter dated 23-4-1973, the Joint Chief Controller of Imports and Exports replied to him stating that under the current policy, there was no restriction whatsover regarding the export of Bone Meal to overseas countries. He thereafter entered into correspondence with overseas buyers for the export of this material and ultimately, entered into a contract, with Messrs. J. C. Gilbert Ltd., London, for the supply of Bone Meal, subject to the specifications laid down in the contract. Having entered into the contract, he exported the goods and necessary documents were presented to the Customs authorities for clearance. The Assistant Collector of Customs passed the 'Let Export' order, meaning that he permitted the export of the goods in question. When the goods were, however, loaded into the steamer, but before the steamer actually sailed, the Assistant Collector of Customs changed his mind and gave a defection to the shipping agents to unload the cargo on the ground that the goods in question were really fertilizers which could not be exported without a licence. Dealing with that matter, the learned Judge held :
'.... The original order passed by the Assistant Collector of Customs, namely, 'Let Export' order dated 8-9-1973, clearly falls within the scope of Section 51 of the Customs Act, which says :
'Where the proper officer is satisfied that any goods entered for export are not prohibited goods and the exporter has paid the duty, if any, assessed thereon, and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance and loading of the goods for exportation.' Thus the order of the Assistant Collector of Customs passed on 8-9-1973 being a statutory order, the order can be revised or reviewed only in accordance with the provisions contained in the said Act and Mr. K. Parasaran, the learned counsel for the respondent, was not able to draw my attention to any provision contained in the Customs Act which enabled the Assistant Collector of Customs to change his mind and to revise or review the order passed by him on 9-9-1993.'
Section 51 of the Act, which concerns with clearance of goods for export, is similar to Section 47 of the Act in its purport and effect, the latter being concerned with import of goods. A Full Bench of the Calcutta High Court in Euresian Equipments & Chemicals v. Collector of Customs : 1980(6)ELT38(Cal) dealt with a case in which the company engaged in exports had been subjected to a notice to show cause why penal action should not be taken under Section 114 of the Act. In the said notice, it has been alleged that the company exported 11 consignments against shipping bills between 29th December, 1969 and 16th June, 1970 and M/s. Euresian Equipments and Chemicals Ltd. and others, Calcutta, therefore appeared to have contravened the provisions of Section 12(1) of the Foreign Exchange Regulation Act, 1947, as amended by a Foreign Exchange Regulation Amendment Act, 1949 read with Government of India, Ministry of Defence (E.A.D.) Notification No. G.S.R. 2641 dated 14-11-1969. Lakshmi Prasad Jajodia, a director of M/s. Euresian Equipments and Chemicals Ltd., Calcutta, signed the 11 shipping bills confirming the truth of the declaration of those shipping bills and also the G.R.1. Forms. The total quantity and F.O.B. value of the goods covered by the said 11 shipping bills were 9465 kilograms and Rs. 12.37,706.30 while the value of magnesium silicate for the equivalent quantity was Rs. 28,395/- (approximately) at the rate of Rs. 3/- per kilogram Manik Chand Jajodia and Jugal Kishore Jajodia, directors of M/s. Euresian Equipments and Chemicals Ltd., Calcutta, also actively helped in the matter of export of the above 11 consignments by issuing bearer cheques in favour of fictitious and non-existing suppliers of bismuth citrate, which goods were subsequently alleged to have been exported to M/s. Modist Corporation, as was evidenced by relative stock book and accounts register. By virtue of the amendment of Foreign Exchange Regulation Act, 1947, it was necessary for the exporter to submit the G.R.1 Forms declaration true in all material particulars under the provisions of Section 12(1) of the said Act. Since this was not done, the export of the goods were liable to prohibition under the above Notification No. G.S.R. 2641 dated 14-11-1969. By virtue of Section 23A, the prohibition also came under Section 11 of the Customs Act, 1962, and hence the goods were liable to confiscation under Section 113(d) and (i) of the Customs Act, 1962. The validity of the said notice was challenged in a writ petition. The matter finally came before a Full Bench to consider the following questions :
'(1) Whether, by virtue of Section 23A of the Foreign Exchange Regulation Act, 1947, the provisions of Section 113 and 114 of the Customs Act, 1962 are attracted for the contravention of Section 12(1) of the Foreign Exchange Regulation Act, 1947, in relation to goods which had been exported beyond India.
(2) Whether, when goods have been exported beyond India such goods may be said to be 'export goods' as defined in Section 2(19) of the Customs Act, 1962 and liable to confiscation under Section 113 for the purpose of imposition of penalty under Section 114 of the said Act.'
The Full Bench stated the law in these words :
'We have earlier set out the provisions of Section 11 of the Customs Act which confers power on the Central Government to prohibit importation or exportation of goods for purposes mentioned therein. These purposes indeed cover very very wide fields. Some of the purposes for which the probation may be imposed as stated in Section 11(2) are, prevention of smuggling, prevention of shortage of goods of any description and prevention of the contravention of any law for the time being in force. Section 113 provides for liability of the goods to confiscation in case of any violation of the prohibition imposed under Section 11 of the Act and Section 114 provides for personal penalty for those whose acts or omissions render the goods liable to confiscation under Section 113. To construe the said sections to mean that Section 114 can only be attracted when the goods are attempted to be exported and will have no application when goods have in fact been exported will defeat the purpose and object for which the said provisions have been introduced. The submissions that the legislature has so intended by using the words 'attempt to export' in Section 113(a), (b) and (d) and the analogy of the offence of attempt to commit suicide given in this connection are, in our opinion, misleading and devoid of merit. An attempt to commit suicide is indeed an offence and the act of committing suicide resulting from the successful attempt may not be considered to be an offence. This is so for the simple reason that once a person attempting to commit suicide succeeds in his attempt he places himself beyond the reach of law and no punishment is intended to be inflicted on the dead person or his heirs and legal representatives by imposing any fine or penalty, as they may in no way be liable or responsible for the said act. As we have earlier observed, the liability of the goods to confiscation arises under Section 113(d), as soon as the goods are attempted to be exported and the attempt to export the goods necessarily precedes the actual export of the goods, Goods become liable to confiscation as soon as the attempt is made. There is no provision in the Act to suggest that this accrued liability is wiped out or extinguished with the exportation of the goods. It may be that after the goods had in fact been exported the liability of the goods to be confiscated may not be enforceable by actual confiscation of the goods. Personal penalty of any person who, in relation to the goods, does or omits to do any act which act or omission renders the goods liable to confiscation under Section 113 or abets the doing or omission of such an act has been provided in Section 114. This provision is attracted as soon as the goods incur the liability to confiscation under Section 113 and such liability, as we have earlier held, arises when the goods are attempted to be exported contrary to any prohibition. It is to be noted that at the time when the goods are sought to be exported they are undoubtedly 'export goods' within the meaning of Section 2(19) of the Customs Act. The liability of personal penalty provided in Section 114 of the Act, which arises with the accrual of the liability of the goods to confiscation under Section 113 of the Act at the stage of the attempt to export the said goods, clearly remains and the said liability is capable of enforcement. In the case of illegal export of any goods contrary to prohibition the effect may be that the liability of the goods to confiscation which arises and accrues may not be capable of enforcement but the personal liability which arises with the accrual of liability of the goods to confiscation can be enforced and by enforcement of the personal liability the offender can still be brought to book and this kind of offence may be checked. We must, therefore hold that by virtue of Section 23A of the Foreign Exchange Regulation Act, 1947 the provisions of Section 113 and 114 of the Customs Act, 1962 are attracted, when there is a contravention of Section 12(1) of the Foreign Exchange Regulation Act, 1947 in relation to goods which had in fact been exported ......'
The Full Bench also observed :
'An order by the proper officer permitting clearance and loading of the goods under Section 51 of the Customs Act does not affect the position.'
Coming to the confiscation, we may notice the observations of the Supreme Court in Collector of Customs v. Boormull : 1975CriLJ545 in which it has been pointed out that a proceeding for confiscation is one in rem rather than one in personam, like e.g., penalty under Section 112 of the Act, one in relation to the goods rather than in relation to the person in any way concerned. Further, in Frankfurther v. W. L. Exner 1947 Ch.D. 629, it was said :
'Confiscation is an act of appropriation of private property for State or Sovereign use and usually been the result of the doing by the owner of some prohibited act. The seizure and appropriation of property as a punishment for breach of the law whether municipal or international was held to be confiscation.'
There are other authorities also who have taken the view, however, like the Calcutta Court, that a confiscation proceeding shall not be controlled by a provision like one under Section 47 or Section 51 of the Act and that it would be incorrect to say that for initiating a confiscation proceeding, it would be necessary to find out whether the goods have been duly cleared by the Customs or not. Such a view has been expressed by a Special Bench of the Customs Tribunal in the case of N. Devidas and Company v. Collector of Customs. Bombay and by the North Regional Bench of the Customs Tribunal in the case of R.K,. Industries v. Collector of Customs and Central Excise . They have stated in no uncertain words that clearance under Section 47 of the Act cannot oust the jurisdiction of the Customs authorities to confiscate goods under Section 111 of the Act, if later on it is found that the conditions, subject to which the goods were permitted to be imported were not fulfilled or complied with. Consensus of judicial opinion thus is : (1) that an order for clearance of the goods for home consumption is a quasi-judicial order and some sort of finality has to be attached to it. Ordinarily, no action to confiscate such goods which are cleared for home consumption will be taken but there may be exceptions to it, such as those indicated in the Delhi Court judgment in the case of Jain Shudh Vanaspati Ltd. and Others v. Union of India and Others : 1982(10)ELT43(Del) supra; and (2) that an action to confiscate goods does not depend on clarion of the goods for home consumption or export, but on conditions enumerated under Sec. 111 of the Act in so far as improperly imported goods are concerned and Sec. 113 of the Act in so far as goods attempted to be improperly exported are concerned. As in the case of goods already exported, it cannot be said that there was not attempt to improperly export, with respect to goods already cleared for home consumption also, it will not be possible to say that they have not been improperly imported.
5. Courts which have taken the view that an order under Section 47 of the Act is final and on the face of such an order in favour of the importer action to confiscate the goods cleared for home consumption cannot be taken, have also taken notice of the exceptions that may arise and even goods cleared in such circumstances can be subjected to confiscation. The Delhi Court's judgment supra has taken notice of these exceptional circumstances saying, 'The finality cannot be disturbed unless the Department successfully shows that there was fraud or deliberate suppression.' Both the Bombay Court and the Delhi Court in the cases of Union of India v. Popular Dyechem : 1987(28)ELT63(Bom) and Jain Shudh Vanaspati Ltd. and Others v. Union of India and Others : 1982(10)ELT43(Del) supra, however, have not taken notice that the seizure and confiscation are acts in rem unlike any penal action under the Act itself being one inrelation to the goods rather than in relation to the person and such proceedings, however, depend not on anything else, but the reasonable belief of the proper officer that the goods are liable to confiscation, whether for the reason of being improperly imported goods or for the reason of improper export. Such a belief may be found to be reasonable for the reasons of fraud or suppression, as noticed by the Delhi Court in Jain Shudh Vansapati Ltd. and Others v. Union of India and Others : 1982(10)ELT43(Del) or such other reasons or such other grounds which render the import or the export illegal and liable to confiscation. It would be only in the notice under Section 124 of the Act that grounds would be disclosed and then only it would be possible to know whether there has been any fraud, suppression of fact and/or any other invalidity in the import or export, or not.
6. Both the Bombay Court judgment in the case of Union of India v. Popular Dyechem : 1987(28)ELT63(Bom) and the Delhi Court judgment in the case of Jain Shudh Vanaspati Ltd. and Others v. Union of India and Others : 1982(10)ELT43(Del) , on their peculiar facts, are good for taking notice of the order under Section 47 of the Act and saying accordingly that unless that order was set aside, no proceeding for confiscation should have been taken. It is difficult, however, to accept this as a law, as once there is a clearance under Section 47 and/or Section 51 of the Act is ordered, unless that order is set aside, the proper officer cannot act on his reasonable belief under Sections 110, 111 or 113 of the Act. The Calcutta Full Bench judgment in the case of Euresian Equipments & Chemicals v. Collector of Customs : 1980(6)ELT38(Cal) has, in substance, pronounced that such proper officer's satisfaction for confiscation proceedings shall remain unaffected by the order of the proper officer permitting the clearance of goods under Section 51 of the Act. That view is in consonance with the basis of the belief that goods have been improperly imported or exported and such belief being in relation to the goods and in rem, it will not be correct to read in the orders under Section 47 or Section 51 of the Act any inhibition upon the jurisdiction of the proper officer to act under Section 110, 111 and 113 of the Act. The petitioner/appellant came to this Court challenging the seizure without waiting for the notice under Section 124 of the Act. Such materials upon which it will be possible to predicate whether there are reasons for misrepresentation or fraud in importing or exporting of any prohibited goods or dutiable goods in violation of the conditions under which such import or export is permissible, will be available only in the notice, which, as we have already noticed, has to contain the grounds on which the proposal to confiscate is based, to afford an opportunity to the importer or the exporter or any other person form whose custody such goods are seized, to make a representation in writing and thereafter heard. We thus find that it is not a fit case in which this Court can declare the seizure invalid.
7. We would have disposed of the appeal and accordingly the writ petition leaving the question whether the seizure and any consequent confiscation is arranged on the facts of this case to be determined at a later stage when notice under Section 124 of the Act is given to the petitioner/appellant, which, in our opinion, would have also in no way affected the petitioner/appellant's right to invoke Section 24 of the Act, had we not been provided with certain material information both by the petitioner/appellant as well as the respondents. It is stated in the counter-affidavit filed on behalf of the respondents that they had addressed a letter to the Executive Director, M/s. Salem Steel Plant and requested them to depute a technical officer to inspect and verify the nature, quality and value of the goods under seizure. A team of officials of M/s. Salem Steel Plant inspected the seized goods on 6-3-1991. In their report, they have said :
'(a) the material cannot be classified as primes or seconds as per Salem Steel Plant's classification;
(b) the material cannot be classified as melting scrap excepting the few sheets which are having severe edge bond weld and gripper mark;
(c) from the grade indicated on the stage and the non-magnetic nature of the sheets and their general appearance the sheets appear to be of stainless steel of auntonitic series;
(d) such material is used for fabrication of non-critical components;
(e) the material can also be re-rolled sheet by sheet to thinner gauges and proceeded further in re-rolling Units for untensil or any other non-critical application.'
It is not disputed before us that stainless steel melting scrap has a specific identification as per Para 26(2)(viii) of the Import and Export Policy AM 90-93 Vol. I (page No. 10). According to this, a stainless steel melting scrap means such waste and scrap of stainless steel with the following dimensions :
Length 153 cms. (6') MaximumWidth 102 cms. (1') MaximumThickness 6.5 cms. (1/4') Maximum
According to the respondents, and it seems there is noting in the hands of the petitioner/appellant to dispute this fact, the goods seized were sheets having an assorted thickness in the range 1.05.5 mm. approximately, the width in the range of 1220 to 1275 mm and a few sheets around 1000 mm. and and the length varying from approximately 1750 to 5000 mm. The respondents, however, appear to concede in the counter-affidavit that the materials cannot be classified as primes or seconds, but they can also be not classified as melting scrap. They assert, however, in the counter-affidavit that such defectives would mean those varieties semi-finished/finished products which are neither prime as per relevant specification nor melting scrap. Such products are charaterised, according to them, by metallurgical/surface imperfections, but are usable as such either for re-rolling or in some direct industrial applications. We have every reason to resist interference with the seizure and withhold any judgment on the merits of the issue until the proper stage of notice comes and further materials are available. We feel however, for these facts, constrained to observe there would be substantial justice the parties in the instant case not to go for any elaborate proceedings, either for confiscation or imposition of penalty, as recourse to Section 24 of the Act shall protect the interest of the Customs on the one hand and save the petitioner/appellant from the protacted proceedings from the stage of the confiscation and penalty, if any, to the stage of appeal, revision, etc. We are induced to take this view by learned counsel for the petitioner/appellant for the facts that have been revealed in the counter-affidavit, which facts make us feel that course which would save any further complications would be in the interest of justice. Learned counsel for the petitioner/appellant has stated before us that the petitioner/appellant would be ready and willing to any denaturing or mutilation of the goods, so that they are usable only for the home consumption by them and for no other purpose. He has also stated that they would have no objection to any Customs Officer deputed at their factory when they use the goods for the purpose of steel ingots only. Section 24 of the Act, in our view, is a provision introudced with the object of removing any chance of abuse of the import by any person for home consumption. The respondents say in the counter-affidavit that there is a chance of these goods being re-rolled or used directly in industrial applications other than used as melting scrap. By denaturing/moulding so that they are brought within the prescriptions in Para 26(2)(viii) of the Import and Export Policy AM 90-93 Vol. I (page No. 10), that is to say, of such length, width and thickness as will qualify the goods as stainless steel melting scrap, the respondents shall only aid in and advance the interest of justice. Keeping this in view, the Court is inclined to order that in case an application to this effect is filed on behalf of the petitioner/appellant before the appropriate authority, the same will be entertained and orders passed in conformity with the requirements envisaged in Section 24 of the Act and goods accordingly released from seizure and any further action for confiscation/prosecution under the Act. This, however, will not mean that the respondents in any manner acted illegally in seizing the goods. In case an order in terms of Section 24 is passed and goods are denatured or mutilated so that they are identified as stainless steel melting scrap, it is obvious that any notice for confiscation will have to be recalled.
8. In the result, this appeal is dismissed with a direction as above to the respondents to entertain the application of the petitioner/appellant under Section 24 of the Act and dispose of the same in the light of the observations made above. No costs.