Per P.G. Chacko : This appeal is against an order passed by the Commissioner of Customs in adjudication of show-cause notice dated 29.3.2001 issued to the party for confiscating certain goods (along with the vehicle used for transportation thereof) which were the subject-matter of final assessment of a Bill of Entry dated 27.9.2000 under Section 47 of the Customs Act. In the impugned order, the Commissioner confiscated 30 gas cylinders containing 284.5 Kgs. of Carbon dioxide under Section 111 (m) of the Customs Act and gave option to the appellants to redeem the same by paying a fine of Rs. 20,000/-. He also held that 68 other gas cylinders (provisionally released) were liable to be confiscated and appropriated Rs. 10,000/- from the security amount towards redemption fine. He ordered likewise in respect of the truck which belonged to the appellants. The Commissioner, further, imposed a penalty of Rs. 10,000/- on the party under Section 112 of the Act.

2. Heard both sides. Ld. counsel for the appellants submits, at the outset, that the show-cause notice and subsequent proceedings are not maintainable. Counsel has given a brief account of the relevant facts of the case to substantiate this contention. The appellants, during the material period, were engaged in the activity of supplying various gases (Carbon dioxide, Nitrogen etc.) in liquified form in metallic cylinders to their customers across the Indo-Nepal border. The customers, after consuming the gases, used to return the empty cylinders back to the appellants in India. In one such transaction, a total of 98 cylinders (returned by customer) were cleared at the Land Customs Station, Sonauli under Bill of Entry dated 27.9.2000. That clearance was pursuant to assessment made by the proper officer of Customs under Section 47 of the Customs Act. The truck containing the cylinders so cleared was intercepted in Indian Territory and seized under Panchnama by officers of Customs. In follow-up action, the department gathered evidence in the form of statements and test reports and booked a case of mis-declaration against the appellants in respect of the goods cleared under the Bill of Entry. The show-cause notice, which followed, proposed to confiscate the vehicle and the goods as also to impose penalty on the appellants. The proposals were contested. The Commissioner of Customs, in adjudication of the show-cause notice, passed the impugned order, the gist of which has already been noted.

3. The counsel's argument is that, for the Department, the only remedy, in the facts of this case, was to revise the Section 47 assessment through recourse to Section 129D of the Customs Act. Counsel submits that the finality of assessment under Section 47 is a fact acknowledged in the impugned order. Therefore, relying on case law, ld. counsel argues that the show-cause notice alleging mis-declaration in the Bill of Entry could not have been issued. The department, if aggrieved in any manner by the assessment made by the proper officer of Customs, could only have resorted to the appellate remedy available under the Customs Act. The case law cited by the counsel are the following:-

(i) Union of India and Others Vs. Popular Dyechem, 1987 (28) ELT 63 (Bom.)

(ii) Decor India and Others Vs. CC, New Delhi, 1987 (31) ELT 400 (T).

Ld. DR has opposed the above argument on the strength of the Supreme Court's decision in Commissioner of Customs Vs. Candid Enterprises, 2001 (44) RLT 702 (SC)=2001 (130) ELT 404 (SC), a decision relied on by the adjudicating authority in this case. Ld. DR further submits that there is no express prohibition under the Customs Act against issuance of show-cause notice for confiscating any imported goods on the ground of misdeclaration even if assessment order has been passed under Section 47. According to ld. DR, the goods in question were liable to seizure on account of mis-declaration in the Bill of Entry, which happened to go unnoticed at the time of assessment under Section