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TaxTMI 
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2008 (8) TMI 311
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....e records were resumed and further statements were recorded. On completion of investigation, it was alleged that:- (i) The said firm had imported 300 MTs of Boric Acid during the period 29-3-2006 to 6-11-2006 in 13 consignments through Nhava Sheva Port. (ii) In terms of Notification 2/2006 dated 7-4-2006 issued by DGFT, and Section 3(e) of Insecticide Act, etc. the importation of boric acid for non-insecticidal use was permitted only on the strength of permit issued for the purpose by CIB & RC, Faridabad under Ministry of Agriculture. (iii) M/s. Jaysun Enterprise, Sural was granted permission vide import permit dated 30-12-2005 issued by CIB & RC, Feridabad for import of 80 MT of boric acid only for non-insecticidal use in their factory premises. (iv) The said firm had however imported 220 MTs of Boric Acid in excess of the quantity permitted to be imported under the said import permit dated 30-12-2005 issued to them by CIB & RC, Faridabad. (v) The import of the said 220 MTs of Boric acid as detailed in the notice was therefore in contravention of the Notification No. 2/2006 dated 7-4-2006 issued by DGFT read with Section 3(2) and (3) and Section 11 of the Foreign Trade (Devel....
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....150 MT) and at Nhava Sheva Port (40 MT) on 23-11-2006 and 3-1-2007, respectively should not be confiscated under Section 111(d) of the Customs Act, 1962. (ii) 5.450 MTs of Ceramic Frit - 444 Grade marked as KGL-4 M/s. Jaysun Enterprise valued at Rs. 43,600/- manufactured from illegally imported boric acid and seized at the factory premises on 23-11-2006 should not be confiscated under Section 120(b) of the Customs Act, 1962. (iii) 159.85 MTs of Boric Acid valued at Rs. 51,03,909/- imported without valid import licence/permit should not be confiscated under Section 111(d) of the Customs Act, 1962. However, the said goods are not available for confiscation. (iv) Penalty should not be imposed upon them under Section 112(a) of the Customs Act, 1962. 4. The appellant-firm and the partner and the employee, resisted the show cause notice, filed a detailed reply. The adjudicating authority after considering the reply filed by the appellant and after granting them an opportunity of personal hearing came to the conclusion that the appellant had violated the provisions of the Customs Act, 1962 and the goods, that is, Boric Acid, are liable for confiscation under the provisions of Section ....
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.... this notification is not applicable to the consignments cleared earlier. It is his submission that consignments, which were cleared by the appellants were finally assessed under the provisions of Section 47 of the Customs Act. Hence, until revenue file an appeal against such assessed bill of entry there cannot be any confiscation of the said goods as the assessment has become final. For this proposition, he relies upon the judgment of the Hon'ble High Court of Madras in the case of Best & Crompton Engineering v. CC, as reported at 1997 (93) E.L.T. 21 (Mad.). 6. As regards the confiscation of the 5.450 MTs of the Ceramic Fritt - 444 Grade, it is his submission that these goods are finished goods manufactured out of the consignment of the Boric Acid cleared by the Customs authorities. Hence, there cannot be any confiscation of the goods. As regards the confiscation of the 40 MTs of Boric Acid, which is seized by the authorities at JNPT, it is his submission that the said confiscation is also not correct as they have produced the required valid permit from Central insecticide Board and Registration Committee, Feridabad, Ministry of Agriculture. He submits that the decision of the La....
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....re us and stands referred to us is not very much on the relative scope of Sections 13 and 23. Therefore, we are not obliged to advert to the said aspect to consider or render our opinion in this regard. On the other hand the only question that stood referred to us is the nature and character of an order passed under Section 47 of the Customs Act, 1962, and the authority or the competence of the said Officer who once passed an order to review or cancel the same. Section 47 as it stood at the relevant point f time reads as follows:- "(1) 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. (2) Where the importer fails to pay the import duty under sub section (1) within seven days from the date on which the bill of entry is returned to him for payment of duty, he shall pay interest at such rate, not below twenty percent and not exceeding thirty percent per annum, as is for the time being fixed by the Board, on....
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.... Any error in such exercise may apparently be amenable for correction by the authorities higher in the hierarchy under any one or other provisions but it is not given to the every officer or authority to go back on the order earlier passed, particularly as noticed above, when there is not specific provision enabling him either to review the said order or alter or vary the same Section 154 cannot help the authority to pass such an order as has been made in this case. If that be the legal position, that the proper officer who has once exercised his power under Section 47 cannot retract and retrace his steps or review the position or alter or cancel the order earlier made, the so called subsequent cancellation of the endorsement by the proper officer by merely cancelling his signature in the Bill of Entry which contained the earlier order of "Out of customs charge", the Department was well with in its right in ignoring the said order of subsequent variation or cancellation and taking the stand and proceeding on the footing that such alteration or cancellation was not a valid one, conferring any rights upon the applicant. The subsequent order of cancellation which appears to have been ....