JUDGMENT
Susanta Chatterji, J.
1. The present writ petition has been filed praying inter alia for a Writ of Mandamus commanding the respondents and particularly the Assistant Collector of Customs, Calcutta Airport to deliver the goods imported by him as fully described in Annexure ‘B’ to the writ petition. It is stated that the petitioner while coming back from Singapore carried with him electrical goods bought at Singapore and opted Red Channel for exit for Customs clearance. The Customs Authorities at the Airport made an inventory on December 10, 1989 of the goods imported out of which Serial Nos. 18 to 28 have been found to be not belonging to baggage items and the said items have been valued at Rs. 7,970. The value of the baggage was fixed at Rs. 9,835. However, after adjudication of the duty and imposition of fine by the Assistant Collector of Customs, Calcutta Airport, the Superintendent of Customs (Administration), Calcutta Airport refused to clear the imported goods of the petitioner on the alleged grounds that the petitioner’s said imported goods are undervalued, notwithstanding the valuation, adjudication and imposition of duties and fine in lieu of confiscation made by the Assistant Collector of Customs, Calcutta Airport. Being aggrieved, the petitioner has come to the writ Court seeking reliefs as indicated above. A Supplementary Affidavit sworn on 14th of March, 1990 has since been filed placing on record that the petitioner has got a copy of the notice of appeal dated February 23, 1990 issued by the Collector of Customs and Central Excise (Appeals) purportedly under Section 129D(2) of the Customs Act addressed to the Assistant Collector of Customs, Calcutta Airport against the petitioner Bharat Chandra Bag and it is submitted that
(a) the Assistant Collector of Customs, Calcutta Airport, could not prefer the appeal against his own adjudication. A copy of the appeal papers with the notice is annexed hereto and marked with the letter “A”.
(b) The appeal could not be preferred by the Assistant Collector of Customs, Calcutta Airport, under Section 129D of the said Act because Section 129D(5) has come into effect on 1-7-1988.
(c) Section 129D(5) and Section 129D(2) have come into force by the same notification with effect from 1-7-1988.
(d) It is held in paragraph 7 of the order that Sections 4,5,11,12 and 16 of the Amendment Act No. 29 of 1988 have not come into force. Further, it is held that Section 4 of the said Amendment Act relates to Section 129D(5) of the Customs Act, 1962, which prohibits application of the Section 129D in relation to the rate of duty or to the value of goods for the purposes of assessment of any duty. Section 5 of the said Amendment Act which relates to Section 129DA(2), according to the said order, has also not come into force. In that event, Section 129DA(2) which was invoked, at the very first instance, as may be seen from page 14 of the appeal papers in Annexure “A”, by the Assistant Collector of Customs, Calcutta Airport for obtaining authorisation from the Collector of Customs for preferring the appeal under Section 129D(4), is invalid. Thereby the entire appeal falls through. Fact remains that Section 129DA(2) is not available to the Assistant Collector of Customs, Calcutta Airport, who cannot be called an aggrieved person and that the Collector of Customs has not acted of his own motion, a copy of the said order is annexure “B” to the Supplementary Affidavit.
(e) It appears from the notice of the appeal that the appeal petition bears the date January 30, 1990 which is much prior to the date of the letter of authority issued by the Collector of Customs being Annexure “E” to the appeal petition, as the letter of authority issued by the Collector of Customs being Annexure “E” to the appeal petition, as the letter of authority issued by the Collector of Customs bears the dated February 13,1990. It indicates clearly that the appeal was filed before obtaining the authority from the Collector as is contemplated under Section 129D(4). This clear violation of law has been wrongfully sought to be explained away as mere clerical mistake in paragraph 9 of the said order.
(f) The Assistant Collector of Customs, Calcutta Airport has himself increased the value of the baggage from Rs. 8,585 to Rs. 39,192 by way of adjudication which is clearly beyond his pecuniary jurisdiction under Section 122 of the Customs Act, 1962 even though the original adjudication was made by himself at Rs. 8,585.
(g) The Collector of Customs (Appeals) has set aside the order of original adjudication dated 13-12-1989 passed by the Assistant Collector of Customs, Calcutta Airport, thereby taking away the entire substratum of the appeal and the appeal falls through.
(h) The order made by the Collector (Appeals) for fresh adjudication by the Deputy Collector of Customs, Calcutta Airport on the same detained baggage after payment of duty and fine in lieu of confiscation is invalid, unfair and beyond the power of the Collector (Appeals) and amounts to manoeuvering.
(i) The fine of Rs. 4,000 in lieu of confiscation under Section 125 of the Customs Act, 1962, already paid cannot be reopened for the purpose of reim-position of larger amount of fine; no personal penalty can be freshly imposed in view of the order passed by the Assistant Collector, Calcutta Airport, on December 13,1989 completely exonerating the writ petitioner from any attempt of evasion of chargeable duty; the Assistant Collector of Customs, Calcutta Airport has allowed redemption of the detained baggage on payment of fine of Rs. 4,000 in lieu of confiscation by the said order dated December 13,1989. The said order of redemption cannot be countermanded after payment of fine in lieu of confiscation.
(j) The detention of baggage from December 13,1989 to February 6,1990 after payment of adjudicated duty of Rs. 19,633.25 P., and fine of Rs. 4,000 imposed in lieu of confiscation without any communication to the writ petitioner has been arbitrary, wrongful and amounts to harassment to the writ petitioner.
2. The writ petition is contested by the respondent Nos. 1, 2 and 3. It is placed on record that the baggage contained non-baggage item viz. lighting equipment of professional nature and the items of the baggage were detained on the 7th of December, 1989 for valuation. The Baggage Officer valued the said goods and put the case papers before the respondent No. 3 the Assistant Collector of Customs, Calcutta Airport for effective adjudication. The respondent No. 3 referred the case to the Appraiser Cargo Complex and the Appraiser valued the items. An adjudication order was passed by the respondent No. 3 allowing the items on payment of redemption fine of Rs. 4,000. The petitioner allegedly paid duty and the redemption fine as per the adjudication order dated 13th of December, 1989. The respondent No. 3 received a phone call on the Special Intelligence Unit shortly after the payment of duty and fine was made by the writ petitioner asking him not to release the subject goods until further instructions. The Special Intelligence Unit informed that under-valuation took place in respect of the items in question. Since, the instant lighting equipments were not items of common imports invoice, price-lists could not be found on market enquiry. However, market sources contacted and time was consumed as the documents could only be collected from abroad. As the writ petitioner made an application for release of the goods, the goods were examined on the basis of the additional evidence as furnished by the Special Intelligence Unit. The respondent No. 2 Collector of Customs by a letter of authority authorised Assistant Collector of Customs, Calcutta Airport to file an appeal before the Collector of Customs (Appeals) under Section 129D(4) of the Customs Act as he was satisfied that the order was not proper. The Collector of Customs (Appeals) passed an order disposing of the appeal by holding, amongst others, that since the Assistant Collector of Customs, Calcutta Airport is himself an appellant and his power to adjudicate is limited upto Rs. 25,000 under Section 122 of the Customs Act, the order could not be sustained and as such he has set aside the adjudication order dated 13th December, 1989 passed by the respondent No. 3 and directed the Deputy Collector of Customs, Calcutta Airport to examine the matter afresh as soon as possible after giving a chance of hearing to the writ petitioner. He has further held that the Deputy Collector of Customs can decide about the quantum of fine and penalty to be imposed on the writ petitioner. Since the Court granted leave to the parties to file affidavit and supplementary affidavit, a comprehensive objection was filed denying the allegation made in the petition and justifying the order made in appeal before the Collector of Customs (Appeals) under Section 129D(4) of the Customs Act. The writ petitioner filed a reply challenging the decisions and orders affecting his right to get the goods released and reiterating the stand taken in the main writ petition.
3. Having heard the learned lawyers for both sides and upon perusal of the materials on record, it appears that admittedly the Assistant Collector of Customs, Calcutta Airport passed an order on 13-12-1989 allowing certain goods imported by the petitioner Bharat Chandra Bag valued at Rs. 8,585 and imposed a fine about Rs. 4,000 in addition to duty. Since the goods were not released in spite of adjudication, the writ petitioner has come to this Court. In the meantime, an appeal was filed by the Assistant Collector of Customs, Calcutta Airport against the aforesaid order. Leave was granted to challenge the impugned order in appeal. The Collector of Customs and Central Excise (Appeals) passed order dated 2nd March, 1990 has held that the value of several goods imported by the petitioner was declared and the same was assessed prima facie low and the same needs to be increased. Some of the price-lists annexed in the appeal petition revealed the higher value of such goods abroad. Since the goods are kept at the Airport the extent of such under-valuation may be determined after examining the goods physically. It has also been found that since the Assistant Collector of Customs himself is an appellant and his power to adjudicate is limited upto Rs. 25,000 under Section 122 of the Customs Act, it is for a different and higher authority to examine the valuation of the disputed goods. Accordingly, he has set aside the order dated 13-2-1989 passed by the Assistant Collector of Customs, Airport and the Deputy Collector of Customs at the Airport has been directed to examine the matter afresh after giving a chance of hearing to the appellant i.e. the Assistant Collector of Customs and to decide about the quantum of fine and penalty. This order is also seriously challenged by the writ petitioner before this Court. It is better to appreciate the scope of Section 129D(4) of the Customs Act, as it stands :-
Section 129D(4)
Where in pursuance of an order under Sub-section (1) or sub-section (2), the adjudicating authority or any officer of customs authorised in this behalf by the Collector of Customs, makes an application to the Appellate Tribunal or the Collector (Appeals) within a period of three months from the date of communication of the order under sub-section (1) or sub-section (2) to the adjudicating authority, such application shall be heard by the Appellate Tribunal or the Collector (Appeals), as the case may be, as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of this Act regarding appeal including the provisions of sub-section (4) of Section 129A shall, so far as may be, apply to such application.
4. By looking at the facts of the case and the scope of Sections 128 and 129 of the Customs Act this Court does not find any justification for the Assistant Collector of Customs, Airport to prefer an appeal and it has got no jurisdiction to prefer an appeal. It is not appreciated as to how the Collector of Customs can direct the Deputy Collector of Customs to initiate any proceedings de novo to examine the matter afresh and to impose a fine further by giving the only chance of hearing to the appellant, the Assistant Collector of Customs. The conclusion of the order of the Appellate Authority is ex facie, bad in law. The petitioner had imported goods in a baggage and upon checking and verification the Assistant Collector who has the jurisdiction to examine the goods and impose the fine has passed the relevant order on 13-2-1989. The release of the goods cannot be withheld for an indefinite period to collect price-lists from abroad and to direct other authorities to examine the matter and to impose the fine by causing prejudice to the interest of the petitioner. If the release of the goods is delayed for an indefinite period the petitioner will be the ultimate sufferer.
5. For the foregoing reasons, the writ petition is disposed of by directing the respondent to release the goods upon accepting a proper indemnity bond to be furnished by the writ petitioner in favour of the Collector of Customs that in case upon fresh adjudication by the Appropriate Authority, he will deposit all the additional duties and fine in accordance with law. The goods will have to be released within a fortnight from the date of communication by keeping a sample of the imported item and this order of disposal will not prevent the respondents to proceed in accordance with law for further adjudication by giving all reasonable opportunities to the petitioner. The order of release is, however, without prejudice to the rights of both sides and subject to further adjudication. The order of appeal is thus varied as indicated above. There will be no order as to costs.
6. All parties to act on a signed xerox copy of the operative portion of judgment, on the usual undertaking.