S. Kalyanam, Member (J)

1. Since a common question of law arises for interpretation in the above two appeals, they are taken together and dispose of by a common order.

2. The above appeals deal with the import of nutmegs and made by the appellants herein in May 1984, the shipment of the same having taken place after 31-3-1984. The import was considered unauthorised by the Collector of Customs, Madras, under the respective impugned orders dated the 28th February, 1985 and the goods were accordingly confiscated. Since the goods have been erroneously allowed clearance by the appraising authorities of the Customs, proceedings were instituted by the Collector of Customs, Madras, by issue of a Show Cause Notice resulting in the impugned orders appealed against under which penalties of Rs. 2,50,000 and Rs. 70,000 were respectively imposed on the appellants. It is against the same, the appellants have come by way of appeal before this Tribunal.

3. Shri Habibullah Badsha, the learned counsel appearing for the appellants did not question the correctness of the view of the authority under the impugned orders that the goods imported were canalised items at the relevant time and merely confined himself to a question of law about the legality, propriety and the correctness of the impugned orders and the jurisdiction of the Collector of Customs in passing the same.

4. It was urged that the goods have been assessed under the relevant bills of entry filed by the appellants herein by the Customs Appraisers and were cleared on the basis of declaration/statement of the parties in terms of Section 17(4) of the Customs Act, 1962. Since the goods had been cleared for home consumption by the proper officer on satisfaction that they were not prohibited and that the importers had paid the import duty, the order permitting clearance is an order of adjudication by a statutory authority in exercise of a quasi judicial function and the same can only be called in question by exercise of revisional power by the Collector of Customs in terms of Section 129D of the Customs Act, 1962. Therefore, the impugned order which springs in consequence of a show cause notice issued by the Collector of Customs under Section 124 as if he was exercising powers as a original adjudicating authority is totally without jurisdiction and non est in the eye of law. The learned counsel also placed reliance on certain rulings in support of his plea which we shall advert to at the relevant place.

5. Shri K.K. Bhatia, the learned Senior Departmental Representative submitted that in the instant case, no order of adjudication or assessment has been made by any adjudicating authority and the out-of-charge order was given by an Appraiser and the same is merely an executive or administrative act and so the question of Collector of Customs revising the same in terms of Section 129 of the Customs Act would not arise. The learned SDR further urged that an order of adjudication can be passed only by way of confiscation or imposition of penalties by the various authorities as specified in Section 122 of the Customs Act and therefore, the out-of-charge order given by an appraiser on scrutiny of the bill of entry will not come within the mischief 01 an order of adjudication.

6. We have carefully considered the submissions of the parties herein. We personally verified the bill of entry and found that it has also been countersigned by an Asstt. Collector. Therefore, the only question that arises for our determination in the appeals is as to whether the order of clearance given by the authorities below after assessment of the bill of entry is an order of adjudication under the Act and consequently the order is appealable or revisable as the case may be by aggrieved persons. Before the goods are permitted for clearance for home consumption under law, the proper officer should be satisfied that the goods entered for home consumption are not prohibited goods and that the importer has paid import duty, i