JUDGMENT
Hazari, J.
1. This is an application under Article 226 of the Constitution of India, inter alia, praying for an order for withdrawing, cancelling and/or rescinding the order of adjudication being Order No. 61/91, dated 9-10-1991 and for other reliefs.
2. The petitioner No. 1 is carrying on business of importing goods from several manufacturers and shippers from United States, West Germany and Belgium. After importing the goods the petitioner No. 1 converts them in accordance with the customers’ specification and requirements. The petitioner No. 1 is a holder of REP Import Licence No. P/L/1475801/C/XX/88, dated 23-3-1989, duly transferred in favour of the petitioner No. 1 for valuable consideration and entered into a contract to purchase 40 pallets of the said goods with M/s. Colpack International Ltd., Herts, England. On 10th July, 1990 upon receipt of the copy of the shipping documents, Bill of Lading, Invoices, Certificate of Insurance, Certificate of origin and Packing List, the petitioner’s Clearing Agents, M/s. New India Corporation, Calcutta, duly filed a Bill of Entry for warehousing under Section 59 of the Customs Act together with the shipping documents as also the import licence. On 7th August, 1990, 20% of the said goods, i.e., 8 pallets were opened in the presence of the Assistant Collector of Customs, N.S.D. and Assistant Collector of Customs, S.I.B. by the concerned Shed Appraiser. The said goods were physically checked and verified and were found to be a mixed sizes and qualities, as declared on behalf of the petitioner.
3. The petitioner No. 2 received a summons under Section 108 of the Customs Act on 10th September, 1990 from the Special Investigation Branch in connection with the importation of Polypropylene Packaging Film Rolls, and the petitioner No. 2 was asked to appear before the authorities on 13th September, 1990 at 11 A.M. The petitioner No. 2 duly appeared and gave a statement. Thereafter the petitioner No. 2 was asked to submit an undertaking that he will not ask for release of the goods until investigation by the Special Investigation Branch is completed. On 5th October, 1990 the bill of entry for warehousing was provisionally assessed under Section 18 of the Customs Act, 1962 the customs duty amounting to Rs. 8,50,478/- with the endorsement “No ex-bond clearance till the finalisation by S.I.B.”. On 16th October, 1990 the petitioner No. 1 executed a bond and the goods were ordered to be warehoused on 16th October, 1990. Petitioners’ further case is that the Customs Authorities were not making the final assessment under Section 17 of the Customs Act in spite of repeated requests by the petitioners by their letters dated 13th December, 1990 and 25th June, 1991. Thereafter bill of entry was filed by the clearing agent on 13th August, 1991 and the petitioners made diverse representations before the Customs Authorities; but the goods were not released though identical goods were released by the authorities concerned under identical import licence produced by the petitioners. On 10th September, 1991 the petitioners received a notice dated 3rd September, 1991 from the Assistant Collector of Customs Import Bond Department, inter alia, threatening to sell the warehoused goods in terms of Section 72(2) of the Customs Act. In the said notice it was stated that the petitioners have not discharged the demand notice issued under Section 17(1) of the said Act. In the said notice it was further stated that if the sale proceeds are not found sufficient enough to cover full amount of the duty, interest, warehouse rent and all other charges, the petitioners would be liable to pay the deficit amount in terms of the bond executed by the petitioners. Petitioners’ further case is that the petitioners never received any notice dated 1st March, 1991. The petitioners made an application under Article 226 of the Constitution of India praying for release of the goods. By an order dated 17th September, 1991 passed by Suhas Chandra Sen, J. the matter was directed to be listed on 19th September, 1991 on which date the said application was disposed of and the customs authorities were directed to decide the matter within three weeks as to whether the goods are covered by licence and in the said order it was provided that if the goods are not covered by licence, the respondents will be at liberty to proceed in accordance with law. On 28th September, 1991, the petitioners received a letter dated 20th September, 1991 from the Assistant Collector of Customs for Appraising Group 2. On 1st October, 1991, the petitioners received a show cause notice dated 26th September, 1991 to show cause as to why the goods should not be confiscated under Section 111(d) and penal action should not be initiated under Section 112 of the Customs Act, 1962 within 7 days. On 21st October, 1991 the petitioners received an order of adjudication being order No. 61 of 1991 dated 9-10-1991. The case of the petitioners is that the goods which are imported have been wrongfully and illegally detained by the authorities concerned and the demand of Rs. 1,25,235/- towards interest on leviable customs duty is wrongful, illegal, arbitrary and without any authority. Further case of the petitioners is that the customs authorities have no power or authority or jurisdiction to confiscate the goods under Section 111(d) or to impose any penalty under Section 112 of the Customs Act. The order of adjudication was passed ex parte without considering the matter in accordance with law.
4. The respondents contested the matter by filing affidavit-in-opposition affirmed by one Pradyot Kumar Chakraborty, Assistant Collector of Customs, Appraising, Group 2, Calcutta. It is stated that the petitioners’ remedy lies by way of appeal before the Tribunal under Section 129 of the Customs Act and the application is misconceived and not maintainable at law and without any substance and all the relevant facts disclosed in the petition are denied in the said affidavit-in-opposition.
5. Mr. Ashok Sen, learned Advocate for the petitioners, submits that the writ petitioners have been regularly importing packaging materials of mixed sizes and qualities and thickness from U.S.A. and diverse other countries of Europe since 1984-85 and those goods used to be released. It is submitted by Mr. Sen that the only point to be decided is whether the goods are disposal goods or new goods. The expression “disposal goods” occurring in Clause 3(3)(iii) of the Import Control Order is used as contra-distinction to ‘new goods’. Once it is found that the goods imported are new, then the mere fact they are not of uniform type and size is not sufficient to warrant to come to the conclusion that they are disposal goods. Mr. Sen relies on the decisions , , and . It is submitted by Mr. Sen that from the inspection and physical verification of the goods it was found that the goods are new goods of different sizes and specification. So, it cannot be said that the goods are disposal goods. Mr. Sen submits that Paragraph 100 of 1988-91 Hand Book is identical to that of Paragraph 96 of 1985-88. It was stated in both the paragraphs that the disposal goods even if new, will not be treated as new goods. It is submitted by Mr. Sen that in spite of the said provisions, the customs authorities allowed release of the goods imported by the petitioners regularly from 1984-85 to 1988 when the respondents suddenly changed their views. Once the goods are cleared by the customs authorities after physical verification and check up under Section 47 of the Customs Act, no show cause notice with regard to the said consignment could be issued unless an order of clearance under Section 47 is reviewed under Section 129D of the Customs Act. Mr. Sen relies upon a decision in the case of Union of India and Ors. v. Jain Shudh Vanaspati, . It is submitted by Mr. Sen that in the instant case the customs authorities have been regularly clearing the identical goods imported by the petitioners and unless the earlier orders of clearance by the customs authorities are reviewed under Section 129D of the Customs Act, it is not open to the customs authorities to issue the notice to show cause. Mr. Sen relied upon a decision in the case of J.K. Synthetic v. Union of India and submits that-
“An authority can depart from his earlier stand only for cogent reasons, such as fresh facts are brought on record or the process of manufacture has changed or the relevant Tariff entry has undergone modification or subsequent to the earlier decision, there has been a pronouncement of a High Court or the Supreme Court which necessitates the reconsideration of the issue.”
6. Mr. Sen further relied upon a decision in the case of Mercantile Express Co. Ltd. v. Assistant Collector of Customs, , wherein it has been held :
“The customs now say that they are not bound by their previous decisions. Whether the doctrine of precedents applies in its full rigor to Administrative agencies and officers, and whether a reasonable latitude should be given to them or administrative tribunals to correct or modify their previous decisions may still remain debatable controversy in the world of law; nevertheless I am clearly of the opinion that neither the Appraiser nor the Collector of Customs can change his mind from time to time in respect of the same articles by assessing them in the case of one importer under one section and then assessing them for another importer under different section. To allow the customs to do so will lead to utter confusion on the very basis and principles of taxation and grave uncertainty in business and foreign trade of India.
The Customs authorities are bound by their own precedents in administering taxing statutes involving the very basis of taxation in respect of particular article and not leave it to them to modify their own previous decisions to leave into them to courts or Parliament or Legislatures, as the case may be, to put the law beyond doubt. … Tariff rulings are now in the nature of administrative directions or guides. … These departmental instructions, guides or ruling can always be examined by Courts of law and if found wrong in law can be overruled and set aside by the Court.”
7. Mr. Sen also refers to the decision in the case of I.B.M. World Trade Corporation v. Union of India , wherein it has been held:
“Once a finding is given by a superior authority on contentions raised before it, it is binding upon the subordinate authorities in subsequent proceedings, unless some other material is brought to their notice, which compels them to take a contrary view. The Court was concerned With the levy of countervailing duty in that case. The same principle would apply to the levy of excise also. In the present case, no other material was before the subordinate authorities at the time when the show cause notices were issued, which would warrant a different view being taken by the subordinate authority for either the previous or subsequent years or the same years.”
8. So far as alternative remedy is concerned, it is submitted by Mr. Sen that there is no rule of law that the High Court should not entertain a writ petition where an alternative remedy is available to a party. Mr. Sen relies on a decision in the case of State of U.P. v. Indian Hume Pipe Co. Ltd. . Mr. Sen prays for an order that the goods may be released.
9. It is submitted by Mr. Sunil Kumar Mitra, learned Advocate for the respondents, that the customs authorities have strictly carried out the direction of Suhas Chandra Sen, J. in terms of the order passed on 19-9-1991 and the customs authorities issued notice to show cause dated 26-9-1991 and thereafter the order of adjudication was passed on 4-10-1991. So, there was no lack of jurisdiction in passing the order and the order cannot be challenged. It is submitted by Mr. Mitra that the order of adjudication is being challenged. Section 129 of the Customs Act provides for appeal against the order of Collector of Customs before the Customs, Central Excise and Gold (Control) Appellate Tribunal. There is no whisper in the petition as to why no such appeal was filed in accordance with that provisions of the Customs Act. Since the adjudication was done in compliance with the order of this Court and there is a provision for appeal against the said order, the present application is misconceived. It is submitted by Mr. Mitra that the question whether the imported goods are or are not second quality or disposal goods, involves a decision on question of facts, which cannot be decided by the Writ Court without taking evidence. The customs authorities, namely, the Additional Collector of Customs, after hearing the parties passed the adjudication order and there is no error on the face of the order nor is there any lack of jurisdiction. The view taken by the authorities is also not unreasonable and not contrary to the view taken by the Court. The adjudicating authority has considered all aspects and came to a finding that the goods are disposal goods. The Additional Collector of Customs took into consideration several facts viz. sub-standard and second quality of goods, low price etc. and came to a finding that the goods imported are disposal goods.
10. Considering the facts and circumstances of the case, it appears that the adjudicating authority had passed the order in accordance with the direction passed by this Court in the earlier writ petition. I do not find any illegality or any arbitrariness in the said order. Since there is a provision for appeal under Section 129 of the Customs Act, the petitioners should have availed of the said provision. But in this case the petitioners have moved this Court afresh and the jurisdiction of the Writ Court is very much limited and when a question of fact has already been decided by the authorities after due exercise of their jurisdiction and power and the said decision is based on materials on record and also on evidence, the Writ Court should not interfere with such decision. However, for the ends of justice it is ordered that the petitioners will be at liberty to prefer an appeal before the Appellate Authority i.e. Customs, Central Excise and Gold (Control) Appellate Tribunal, if advised, will pray for condonation of delay in preferring the appeal, as the petitioners have taken recourse to file the present application and if such an application is filed, the Appellate Authority i.e. Customs, Central Excise and Gold (Control) Appellate Tribunal will allow the condonation petition and hear the appeal on merits, in accordance with law.
11. The application is disposed of accordingly. There will be no order as to costs.
12. All parties are to act on a signed copy of the minutes of the operative part of the judgment on the usual undertaking.