Full Judgment
Suhas Chandra Sen, J.
1. The petitioner imported mini handy scanner from Taiwan and submitted the Bill of Entry in respect thereof for clearance of the goods at Calcutta. The goods were released by Calcutta Customs to the petitioner's clearing agents. The petitioner claims that it had a valid licence to import the goods.
2. The case of the Customs Department as stated in the affidavit-in-opposition of Ranjan Kumar Sahoo, Respondent No. 3, affirmed on 4th October, 1991 is:
'The evidence on record in possession of the answering respondentsherein would demonstrate that while importing the mini handy scanner andsubmitting the Bill of Entry therefor the petitioners herein failed to disclose allthe relevant particulars relating to importation of the consignment, and alsomis-declared the value thereof. Furthermore, import licence does not cover therestricted item like loaded P.C.B. and as such the Customs Authorities haveinitiated an investigation in the matter by obtaining the goods as mentioned inAnnexure 'E' to the writ application.
If the allegations are found to be correct on investigation the petitionerhad no right to import the goods without a valid licence and the said goods areliable to confiscation. In such circumstances the petitioners herein are e-stopped to say that because of the order under Section 47 of the Customs Actsteps cannot be taken against the petitioners under the provisions of theCustoms Act, 1962.'
3. It has been further stated that all the questions will have to beadjudicated by the Competent Authority under the provisions of the CustomsAct, 1962.
4. It has been further stated in the aforesaid affidavit that the bill ofentry dated 27-8-1991 lodged on behalf of the petitioner mentions 'mini handyscanner as per invoice attached (computer peripherals)'. The petitioner's imported licence did not cover, the importation of restricted item like loadedP.C.B. These items could be imported only under specific licences. In the Bill ofEntry, costly software materials, imported by the petitioner were also notmentioned. The quoted price in the invoice was in respect of mini handyscanner only and was not inclusive of other materials, some of which weremanufactured by Z-Soft Corporation of U.S.A. The Customs Duty wasoriginally calculated on the basis of declaration made by the petitioner. But oncoming to know the further facts it was decided to detain the goods. It has beenstated that the Customs Authority at Bombay have detained some of the goods,at the instance of the Calcutta Customs Authority. On behalf of the petitioner ithas been contended that the Customs Officers at Bombay could not detain thegoods after clearance of the goods by the Customs Authority at Calcutta. In myview this approach of the petitioner is entirely erroneous. Customs Officers atCalcutta and Bombay are officers of the same department. If any detention ofgoods has to be done at Bombay for the purpose of any investigation inCalcutta then I fail to see why the Customs Officers of Bombay cannot do so inexercise of their statutory authority under the Customs Act.
5. Moreover, serious allegations have been made that the petitioner hasinduced the Customs Officer to release the goods on false representation orsuppression of facts. I do not see why remedial steps cannot be taken accordingto law.
6. Mr. Mullick appearing on behalf of the petitioner has contended thatafter the goods have been cleared it is not open to the Customs Department toseize the cleared goods. Moreover, in this case the officer who has cleared thegoods has not decided to detain the goods. When the goods were cleared byone officer, another officer cannot detain the said goods. Strong reliance in thisconnection was placed on a judgment of Delhi High Court in the case of JainShudh Vanaspati Ltd. and Ors. v. Union of India and Ors. - : 1982(10)ELT43(Del) which was followed by the Bombay High Court in the case of Union of India andOthers v. Popular Dyechem - : 1987(28)ELT63(Bom) . Reliance was also placedon a judgment of the Calcutta High Court in the case of Sharad Himatlal Daftaryv. Collector of Customs - : 1988(36)ELT468(Cal) .
7. The principles laid down in all these cases were in the context of thefacts of those cases. No general principle can be made applicable to every case.In fact, in the case of Jain Shudh Vanaspati it was observed:
'Considering Section 47 of the Customs Act in the light of the legislativehistory, we are clear that the section attaches finality to the satisfaction of theofficer that the goods are not prohibited. The finality cannot be disturbedunless the Department successfully shows that there was fraud or deliberatesuppression.'
In the instant case the allegation of the Customs Department is that thepetitioner has committed fraud and has suppressed the material facts. It hasbeen stated in the affidavit filed by the Assistant Collector of Customs (Preventive) that the import licence of the petitioner does not permit him to bring in therestricted items like loaded P.C.B., which was restricted under Appendix-2B ofSerial No. 160 of the Import Export Policy of the 1990-93. Furthermore, it hasbeen alleged that other costly softwares were not disclosed at the time ofimportation. There is also allegation about distortion of the import price.
8. In view of the aforesaid the respondents have been able to make outa prima facie case which calls for an answer. Therefore, the writ petition fails andis dismissed. All the questions of facts and laws are left open to be agitatedbefore the Adjudicating Authority.
9. Reply to the show cause notice must be sent to the authorities within3 weeks time from date. The Adjudicating Authority shall dispose of the case inaccordance with law after giving a personal hearing to the writ petitioner.
10. There will be no order as to costs.
11. All parties stall act on a signed copy of the minutes of the operativepart of this order on the usual undertaking.