Validity of the order passed by Collector of Customs can be adjudicated upon Article 226.

K.A. SWAMI, C.J

This appeal is preferred against the order dated 27-9-1993 passed in Writ Petition 16738 of 1993. Learned single Judge has allowed the writ petition and issued the following directions to the Customs, Excise and Gold (Control) Appellate Tribunal :

"Taking the above into consideration, I direct the release of the subject goods pending the filing of the appeal before CEGAT on the following conditions :-

(1) The petitioner should pay the differential duty in cash to the tune of Rs. 2 lakhs.

(2) The petitioner should furnish a bank guarantee to the tune of Rs. 2 lakhs.

(3) The petitioner is permitted to give a personal bond, as provided in the Customs Act, for the balance of the differential duty, redemption fine and penalty.

The writ petition is ordered on the above terms. There will be no order as to costs. This order is subject to the final order of the CEGAT.'

2.At the outset, it may also be pointed out that the learned single Judge has recorded a clear finding in the following terms :-"

The petitioner is said to be a well known importer of scrap metal shellings from Singapore and other countries. In respect of the Bill of Entry dated 25-6-1993 relating to a total of 138.83 M.Ts of scrap metals, there was an inspection and it was found that they contained stainless steel scrap also. In fact a total of 95 MT was said to comprise of such stainless steel scrap. There are two types of stainless steel metal scraps, one being magnetic stainless steel and the other being non-magnetic stainless steel. It is admitted that the non-magnetic stainless steel is superior and costlier. The goods in question comprised of magnetic stainless steel scrap. The only question, therefore, is as to the value of the goods for the purpose of customs duty. For this, the petitioner had relied on the quotation given by M/s. The Projects and Equipments Corporation of India (Government of India undertaking), New Delhi. This is rejected by the Collector on the ground that it is only a quotation for sale and not actual price. The first respondent has proceeded to consider the price quoted by several companies ranging between US $ 550 and US $ 850/ MT. According to the petitioner, these relate to the prime quality of stainless steel. After considering all the points, the first respondent comes to the conclusion that the value of the subject goods should be determined for the purpose of duty at US $ 330/MT CIF. In other words, the assessable value is worked out at Rs. 10, 14, 597/-. Consequently, the order of the first respondent has directed confiscation of 95.65 MT of stainless steel scrap and has permitted the release of the goods on payment of redemption fine of Rs. 1, 50, 000/- and imposed a penalty of Rs. 30, 000/- on the petitioner. The differential duty on the subject goods worked out at Rs. 5, 43, 126/-.

"Thus, without deciding the validity of the order dated 3-9-1993 passed by the respondent, against which an appeal is provided to CEGAT, the order under appeal is passed directing the release of the goods. The Collector on examining the relevant material has passed the order dated 12th August, 1993 despatched on 3rd September, 1993, in No. S8/217/93 CR 3 & 4, S59/83/93 3 & 4 in the following terms :-

3.The aforesaid order of the Collector is appealable and an appeal lies to the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT) under Section 129A of the Customs Act (hereinafter referred to as the Act). It is submitted by learned counsel for the respondent in the appeal that such an appeal is preferred before the Customs, Excise and Gold (Control) Appellate Tribunal. The conditions for preferring an appeal are stated in Section 129B of the Act, thus :-

Thus, from the aforesaid provisions contained in Section 129B of the Act, it is clear that along with the appeal, the appellant is required to deposit the duty and interest as demanded in respect of the goods not being under the control of the Customs authorities and the penal