ORDER
S. Kalyanam, Member (J)
1. The appeal is directed against the order of the Collector of Customs, Cochin dated 19-4-1985 imposing a fine of Rs. 3,49,748/- under Section 125 and a penalty of Rs. 50,000/- under Section 112(a) of the Customs Act, 1962 (hereinafter referred to as ‘the Act’).
2. The appellant herein imported two consignments of fabrics covered by Bill of Entry No. 515 dated 28-1-1984 and 537 dated 30-1-1984 at Cochin and sought clearance of the same against ten R.E.P. licences. Proceedings were instituted against the appellant on the ground that the goods in question were not permissible for import under the relevant R.E.P. licences as they were ‘umbrella cloth’ and not ‘lining material’ in terms of the relevant Policy for the year 1982-83 and 1983-84 and the proceedings eventually culminated in the present impugned order now appealed against.
3. Shri Habibullah Badsha, the learned Senior Counsel expatiated on various aspects of the case on merits. Since we feel that the appeal itself can be disposed of on a preliminary question of law and on grounds of legality of the impugned order, we do not propose to traverse the various submissions urged by the learned Counsel.
4. In the present case the goods imported were permitted to be cleared for home consumption by the proper officer in terms of Section 47 of the Act. The proper officer accepted the import licence, assessed the goods in February 1984 and in pursuance of such an order of assessment by the proper officer, the appellant also paid duty in February 1984. This factual position is not disputed by the learned Departmental Representative. It is only thereafter proceedings were sought to be instituted against the appellant by the Collector of Customs by means of two show cause notices dated 28-2-1984 and an addendum dated 3-3-1984 which eventually resulted in the present impugned order. The short question of law that arises for our consideration at the outset in the present appeal is whether the Collector of Customs has jurisdiction and is competent under the Act to issue the show cause notices referred to supra, on the same facts, particularly in a situation when the goods in question were permitted to be cleared after acceptance of the licence and assessment by a proper officer in terms of Section 47 of the Customs Act, 1962. In other words, in exercise of a statutory power of adjudication in terms of Section 47 of the Act when the proper officer has accepted the licence and assessed the goods after examination of the goods and in pursuance of such assessment when the appellant has admittedly paid duty also, such an order, which is an order of adjudication in law, can be modified or revised only in a wanner known to law. We do not find any legal basis or warrant in law clothing or empowering the Collector of Customs with any authority or jurisdiction under the Act to initiate proceedings once over in respect of the goods in question on identical evidence and on identical set of circumstances. We would like to observe in this context that after the constitution of the Tribunal on and from 11-10-1982, there is no power of review or revision available to the Collector of Customs under the Act and the only recourse open to him is to file an appeal in terms of Section 129D of the Act. It is not disputed before us that the Collector has not had recourse to this provision of law. This legal portion is no longer res integra and is covered by authoritative pronoucements of the Division Bench ruling of Punjab and Haryana High Court as well as the Division Bench ruling of the Delhi High Court, both of which have been adverted to in a ruling of this Tribunal in the case of ‘Ajay Exports and another Vs. Collector of Customs, Madras, reported in 1986 (26) ELT 873, to which one of us is a party. Apart from it, the same legal question also came up for consideration in another ruling of the Tribunal in the case of ‘Parkar Leather Export Co. Vs. Collector of Customs, Madras’, reported in 1987 (29) ELT 53. Therefore, following the ratio of the Division Bench ruling of the Delhi High Court in the case of ‘Jain Shudh Vanaspati Ltd. and another v. Union of India and Ors.’, reported in 1982 [ELT 43 (Del.)] and the Division Bench ruling of Punjab and Haryana High Court in the case of ‘Oswal Woollen Mills’ referred to in the case of ‘Industrial Cables Ltd. and another’ v. Union of India and Ors.’, reported in 1986 (25) ELT 33 (P.&H.) and the earlier rulings of the Tribunal, we are inclined to hold that the impugned order appealed against is without jurisdiction in law. In this view of the matter without going into the merits of the issue, we set aside the impugned order appealed against and allow the appeal with consequential relief.
5. Shri Habibullah Badsha, the learned Counsel at this stage submits that a substantial amount remains locked up with the Department since the year 1984 and, therefore, a direction may be given for expeditious refund of the same in the light of this order. Having regard to the facts that the issue is pending since the year 1984, we direct the authorities to grant refund in terms of this order within three months from the date of receipt of this order.