- (1.) THE Order of the Court is as follows :- THE first of the writ petitions is to quash an order of the Assistant Collector of Customs dated 14-7-1992 refixing the value of Dathatsu Diesel engines with gear box. Originally, the value was fixed at Rs. 7000/- per engine and Rs. 500/- per gear box. THE successor Assistant Collector revised the value taking the view that the relevant materials had not been taken into account and the consignment had not been examined fully. He has passed an order on 14-7-1992. Admittedly, an appeal lies to the Collector (Appeals), against the said order. In the affidavit filed in support of the writ petition it is stated that the right of appeal is purely illusory and as the order of adjudication is vitiated by errors apparent on the face of the record, it can be challenged in this Court under Article 226 of the Constitution of India.
(2.) IN the course of arguments, it was contended that the Assistant Collector had no jurisdiction to pass an order revising the value fixed by his predecessor and, therefore, this Court should interfere. I am not inclined to interfere in this matter, because it is not stated in the affidavit as to how the right of appeal is illusory. Merely stating that the right of appeal is illusory will not enable the petitioner to approach this Court. It is not even stated in the affidavit that if such an appeal is preferred before the authority concerned, it would not be efficacious or that it would take such a long time as to cause great prejudice to the petitioner. IN the absence of such averments, the jurisdiction of this Court cannot be invoked as against the order, which is appealable. In the second writ petition, the order challenged is a consequential order or confiscation made under Section 128 of the Customs Act, 1962. It is passed on 16-7-1992. That order is also appealable. The main ground of attack is that the order is one of absolute confiscation and hence the Assistant Collector ought to have exercised his discretion as to whether the goods could be redeemed on payment. According to learned counsel an opportunity ought to have been given to the petitioner to pay the amount and redeem the goods before making an order of absolute confiscation. It is contended that the order suffers from errors apparent on the face of record and, therefore, that should be interfered with.
(3.) WHEN the order is appealable, it is open to the petitioner to urge all his grounds before the Appellate Authority. The following rulings are cited by learned counsel in support of his contention that before passing an order under Section 125 of the Customs , the officer in question should exercise his discretion as to whether the goods should be released on payment of money.In re. S.S. Kothari Excise & Customs Cases 81], it was held by the Calcutta High Court that the power to give option to the importer to realise the prohibited goods upon payment of fine is a power coupled with duty and in any event it should be exercised fairly and reasonably and not arbitrarily and capriciously.;