Per S.S. Kang :

Brief facts of the case are that the respondents made an import of beef tallow and filed a Bill of Entry and sought clearance of the goods, in question, on the strength of additional license dated 12.3.81. On the date of issue of the import licence, beef tallow was under OGL and w.e.f. 5.6.81, the beef tallow was placed in the list of canalised item under Appendix 8 of Import Export Policy. However, the 1icence was accepted by the Collector of Customs and clearance was allowed. The Central Board of Excise Customs, in exercise of power, conferred under Section 129D of the Customs Act, called for the relevant record and after perusal, passed an order directing the Col lector of Customs to make an application to Customs, Excise Gold (Control) Appellate Tribunal under Section 129D of the Customs Act, 1962.

2. When the case was listed before the Division Bench, the importer took a specific plea that order passed under Section 47 of the Customs Act, 1962 is an administrative order and is not passed by Collector as adjudicating authority. Therefore, the Board has no power to review such order in view of the decision of the Tribunal in the case of C.C.E. Vs. Metro Exporters Pvt. Ltd. reported in 1988 (37) E.L.T. 610 (T). The Bench, after taking note of the contrary view taken by the Tribunal in the case of C.C.E., Cochin Vs. M/s. Emjay Enterprises reported in 1987 (12) ECR 490, referred the matter to the Larger Bench.

3. Heard both sides.

4. The contention of the importer is that order passed by the Collector (Customs) under Sec. 47 of the Customs Act, 1962 is only an administrative order and Section 129D of the Customs Act provides that "Board may, of its own motion or on the application of any aggrieved person or otherwise, call for and examine the record of any proceeding in which a Commissioner of Customs has passed any decision or order under Section 47 of the Act for the purpose of satisfying itself as to the correctness, legality or propriety of such decision or order. The contention of the importer is that before passing the order under Sec. 47 of the Act, no show cause notice was issued nor the order was conveyed to them, therefore, such order is not an order passed in adjudicating proceedings. Their submission is that mere filing of the Bill of Entry does not create a lis and on filing of Bill of Entry, the proper officer may agree with the importer or issue a show cause notice and pass adjudication order. In case where the proper officer is agreed with the importer and ordered the clearance of the goods and in absence of any lis, such order cannot be held to be an adjudication order. Further, the order was never served upon the importer and is only on the note sheet of the file. Therefore, the view taken by the Tribunal in the case of Metro Exporters (P) Ltd. (supra) is proper. He also relied upon the decision of Hon'ble Single Judge in the case of Bengal Tools Ltd. Vs. Additional D.G.R.I. reported in 1995 (77) E.L.T. 858 (Cal.).

5. Section 47 of the Customs Act, 1962 provides as under:

"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.

Where the importer fails to pay the import duty under sub-section (1) within seven days from the date on which the bill of entry is returned to him for payment of duty, he shall pay interest at such rate, not below ten per cent and not exceeding thirty per cent per annum, as is for the time being fixed by the Board, on such duty till the date of payment of the said duty."

6. We find that the scope of Section 47 of Customs Act is interpreted by the Division Bench of Hon'ble Madras High Court in the case of Best Crompton Engineering Vs. C.C., Madras reported in 1997 (93) E.L.T. 21 (Mad.) that the ord