Decided on September 01,1986



S.Kalyanam, - (1.)THIS appeal is directed against the order of the Additional Collector of Customs, Madurai dated 1.4.1986 confiscating confectionery machineries of Indian origin under Section 113(c) and 113(d) and imposing a fine of Rs. 5000 in lieu of confiscation of the same under Section 125 and releasing the same besides a penalty of Rs. 1000/- under Section 114 of the Customs Act, 1962, hereinafter referred to as the Act.
(2.)The Customs Officers attached to the Customs Preventive Wing, Tuticorin, seized on 31.8.1985 near Alagapuri sea shore, about 8 KMs from Tuticorin, wooden crates of Indian origin on a reasonable belief that they were meant for illicit export to Sri Lanka. The said machineries belong to the appellant. At the time of seizure of the machineries from a hut, one Vellayan was present. Vellayan gave a statement on 31.8.1985 to the effect that the machineries under seizure were brought to the place of seizue few months earlier and concealed in a hut by his relative Murugan and the machineries were kept there for eventual clandestine export to Sri Lanka. It is in these circumstances, after further investigations, proceedings were instituted against the appellant and others which resulted in the present impugned order, now appealed against.
Shri Ramaswamy, the learned consultant for the appellant at the outset submitted that the impugned order is totally vitiated by a personal bias on the part of the adjudicating authority. It was urged that the adjudicating authority has imported his personal knowledge in deciding the issue against the appellant. Shri Ramaswamy, in particular, referred to the suo motu visit of the adjudicating authority on 25.3.86 to the appellant's confectionery manufacturing unit and questioning the appellant there and incorporating not only his impression but also the answers elicited by the adjudicating authority in the adjudication order and given a finding against the appellant. The learned consultant also drew my attention to a corrigendum issued by the lower authority to show cause notice as well as to a corrigendum issued to the impugned order and submitted that the impugned order would be vitiated by the said corrigenda. The learned consultant also urged other points on merits, which I do not propose to traverse in the appeal before me in view of the fact that in my opinion, the impugned order appealed against suffers from a legal infirmity.

(3.)SHRI C.V. Krishnan, the learned DR fairly conceded that the adjudicating authority has, as a matter of fact visited the appellant's factory during the pendency of adjudication and incorporated the answers alleged to have been given by the appellant to the adjudicating authority in the impugned order and relied upon this circumstance against the appellant.

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