The Proper Officer who passed the "Out of Customs charge" order under Section 47 of the Customs Act, 1962, did not have the power to review or cancel the same.

D. RAJU, J.

The above references have been made under Section 130 (1) of Customs Act, 1961, at the instance of the respective applicants-Collector of Customs, Custom House, Madras, referring the following question of law for our consideration and decision :

"Whether in the facts of circumstances of the case, the cancellation of the 'Out of Customs charge' Order given under Section 47 of the Customs Act, 1962 can be considered to be not a valid one as held by the Department" *

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2.So far as R.C. 13 of 1985 is concerned, the applicants appear to have imported 1000 MT of Nickel by the vessel M.V. John which arrived at Madras Port in December, 1979. There appeared to be some disputes in respect of the goods under Open General Licence and the Deputy Collector of Customs who confiscated the goods in adjudication proceedings appears to have allowed clearance on the payment of a fine of Rs. 25, 000/-. The applicants paid the fine and duty levied on the entire consignment on 7-10-1980. After the payment of duty, the applicants obtained "Out of Charge" order on the Bill of Entry from the Proper Officer viz., Deputy Office Superintendent, Accounts Department, under Section 47 of the Customs Act, 1962, in respect of the goods already examined in the dock.

3.Subsequently the applicants on inspection of the consignment in the docks, seem to have found the packages in a damaged conditions and suspected damages and requested the Customs Department and obtained an 'Open and Inspection' order from the scrutinising Appraiser of the concerned assessment group in the Customs House. When this order was shown to the proper officer who had issued the "out of charge" order earlier with a view to cancel the same to enable them to hold a survey, the proper officer cancelled the signature in the Bill of Entry and attested the same. But when the applicant requested for examination of the packages by their letter dated 27-10-1980, the Assistant Collector refused permission. The applicants in such circumstances, relying upon the Lloyd's surveyors representative, who appears to have independently confirmed the shortages, filed a claim under Section 13 of the Customs Act, 1962 for refund of excess duty paid as shortage were found by the Surveyors. The Assistant Collector of Customs by his letters dated 6-7-1981 and 4-8-1981 rejected and refund claim. The appeal filed thereon, before the Appellate Collector of Customs also failed and the appeal was rejected by an order dated 13-3-1983 as against which this matter was pursued before the Tribunal under Section 129(1) and the Tribunal also concurred with the orders of the Authorities below and dismissed the appeal by its order dated 27-10-1984. It is only thereafter the applicants moved the Tribunal for a reference to this Court on the question of law noticed supra.

4.So far as R.C. 14 of 1985 is concerned the applicants in this case also imported 1000 MT Nickel by the vessel S.S. Nodalloyd Weser which arrived at Madras Port in December, 1979. As in the other case there appears to be some dispute in respect of the import of the goods under the Open General Licence resulting in the Deputy Collector of Customs order of confiscation with liberty to clear the goods on payment of fine of Rs. 25, 000/-. The applicants paid the fine and duty levied on the entire consignment on 7-10-1980 and after such payment of the duty the applicants obtained a "out of charge" order on the Bill of Entry from the proper officer viz., The Deputy Office Superintendent, Accounts Department under Section 47 of the Act in respect of the goods already examined in the docks.

5.As in the previous case the applicants herein also on inspection of the consignment in the docks found the packages in damages condition and suspected shortage and requested the Customs Department for a survey and obtained an "Open Inspection Order" from the scrutinising Appraiser of the concerned assessment group in the Customs House. When this order was shown as