TaxTMI 
TaxTMI 
2001 (11) TMI 82
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....toms, Excise and Gold (Control) Appellate Tribunal which upheld the order of Collector of Custom dated 22nd October, 1993. By the said order, the Collector of Customs directed the discharge of show cause notice dated 18th February 1991 and had directed that the proceedings be dropped. We grant leave in the special leave petition. 3.Civil Appeal No. 7931 of 1995 has been filed by the original writ petitioner. The limited challenge therein is to the direction for payment of demurrage, container charges and ground rent by the said petitioner till January 15, 1991. The contention urged in this appeal is that the said charges are payable by the appellant only upto 21st September, 1990 and not thereafter. 4.This judgment will dispose of all four appeals. 5.We have heard learned Attorney General and also learned counsel for the Corporation. None, however, appeared for the importer who is respondent in Civil Appeal Nos. 767-768 of 1995 and Civil Appeal arising out of SLP (C) No. 1663 of 2000 and appellant in Civil Appeal No. 7931 of 1995. 6.The importer filed Bill of Entry dated 16th August, 1990 for clearance of consignment declared as 100% Polyester Fabric. On 3rd September, 1990, Cu....
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....e importer further claimed that the order imposing penalty and redemption fine as aforesaid was made on 21st September, 1990 which amount along with the customs duty were deposited on the very next date and since the goods were not released despite the said deposits, the writ petition was being filed. 8.The formal order on the lines on which the order was made on the note-sheet on 21st September, 1990 was passed by the Assistant Collector on 15th January, 1991. 9.In the counter affidavit filed in the writ petition, the Assistant Collector, Directorate of Revenue (Intelligence) averred that the importer had violated the import control order and evaded duty amounting to over Rs. 16 lakhs. On receipt of information by fhe DRI that the export effected was fraudulent and no test report regarding the goods was filed, the statement of the 'Director of the' writ petitioner-company was recorded under Section 108 of the Customs Act. The statements of some other persons were also recorded under Section 108. The case of the Directorate of Revenue was that the exports were fraudulent. When the writ petition came up before the Division Bench of the High Court on 11th February, 1991, a request ....
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....ined from going into the second contention which concerned the merits of the case. The order dated 22nd October, 1993 was upheld in appeal by the Tribunal and the appeal was dismissed on 13th September, 1999. That order is the subject matter of appeal arising out of SLP (C) No. 1663 of 2000. By the impugned judgment and order that High Court allowed the writ petition and directed release of the goods and issued directions for payment of demurrage etc. as noticed herein before. 12.The Tribunal has dismissed the appeal against the order dated 22nd October, 1993 filed by the Government upholding the order of the Collector principally on the ground that the Collector had no jurisdiction to pass a fresh order of adjudication in view of earlier order dated 10/15th January, 1991 covering the consignment in question and also for the reason that the High Court while deciding the writ petition upheld the finding that the Collector had no jurisdiction to pass a fresh adjudication order in view of the earlier order dated 10/15th January, 1991. Accordingly the Tribunal declined to interfere with the order of the Collector and, thus, the appeal was dismissed. It deserves to be noticed that the ....
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....e facts that the test report was not and could not be taken into consideration by the Assistant Collector when the order was passed on 21st September, 1990 followed by a formal order dated 10/15th January, 1991. On the basis of the order for release passed on 21st September, 1990, the importer was claiming release of the goods for which purpose it had even filed the writ petition even prior to 15th January, 1991. The principles of res judicata or constructive res judicata have no application whatsoever. Further, it is evident that by order dated 11th February, 1991 the High Court had allowed the investigation. In its view, Ihe case had to be examined on merits to find out whether it was a case of fraud or not, as contended by the departmenr. The merits of the case were not gone into because the Collector accepted the first submission regarding the applicability of principles of constructive res judicata. Further, the High Court in the impugned judgment and order has observed that the order of the Collector dated 22nd October, 1993 was not the subject matter of challenge before it. It was in this light that the observations of the High Court that the Collector was right in holding t....