ORDER

The 1st respondents imported RBD palm oil during the period November, 1978, to March, 1979, and cleared the same in the quantity of 13,500 metric tonnes. Import of the said oil was permissible. On 11th October, 1979, the 1st respondents were served with show cause notices under Section 28 of the Customs Act and, on 21st January, 1980, with show cause notices under Section 124 thereof. The show cause notices stated that the said oil had been imported in containers made of stainless steel, which was a banned item, but which had been painted over to give the impression that they were made of mild steel. Thus, Customs duty had not been levied and the stainless steel containers were liable to be confiscated. The respondents were required to show cause there against. The respondents filed a writ petition in the Delhi High Court on 8th February, 1980, impugning the issuance of the Section 28 and Section 124 show cause notices. On 22nd August, 1980 the High Court allowed the writ petition.

2. This appeal is directed against the judgment and order of the High Court. When special leave was granted on 9th October, 1980, this court ordered that the stainless steel containers which had been seized by the appellants would continue to remain under seizure and be kept in the factory premises of the 1st respondents under the supervision of a Customs Officer. We are told that they so remain.

3. For completeness, it is necessary to mention that the appeal was dismissed on 28th November, 1991, but, on the review petition of the appellants, that judgment and order was set aside and the appeal was directed to be heard afresh, which is how we come to hear it.

4. The High Court based its judgment on material produced by the respondents before it to show that modern marketing practice required the movement of refined oil only in stainless steel or epoxy-coated tanks. It found that the material acceptable, particularly because one of the letters that the respondents produced had been written by the State Trading Corporation. The High Court held that the stainless steel containers that were used by the 1st, respondents to import the said oil could not be treated as separate or independent items of importation. What had been imported was only the said oil and not the stainless steel containers. The High Court looked to the law and stressed Section 47, whereunder clearance for home consumption had been given. It took the view that no show cause notices under Section 28 or Section 124 could have been issued unless and until the order under Section 47 had been revised under the provisions of Section 130.

Section 47 reads thus :-

"47. Clearance of goods for home consumption.-Where the proper officer is satisfied that any goods entered for home consumption are not prohibited goods and the importer has paid the import duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance of the goods for home consumption."

Section 28 reads thus :-

"S. 28.- Notice for payment of duties not levied, short levied or erroneously refunded.-(1) When any duty has not been levied or has been short levied or erroneously refunded, the proper officer may, within six months from the relevant date, serve notice on the person chargeable with the duty which has not been levied or which has been so short levied or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice;

Provided that where any duty has not been levied or has been short levied or has been erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts by the importer or the exporter or the agent or employee of the importer or exporter, the provisions of this sub-section shall have effect as if for the words "six months" the words "five years" were substituted.

(2) The Assistant Collector of Customs after considering the representa