WA 127/2011 BEFORE HON’BLE MR. JUSTICE A.K.GOEL HON’BLE MR. JUSTICE AMITAVA ROY (Goel, J) This appeal has been preferred by the Revenue against the order of the l earned Single Judge dated 26.3.2010 passed in WP(C) No. 1938/2009 quashing the s eizure made on 4.3.2009 and further consequential actions under the provisions o f the Customs Act, 1962. The respondent/ writ petitioner imported readymade garments from Banglad esh through the Land Customs Stations. After arrival of the consignment at the M ankachar Land Customs Station on 4.3.2009, information was received by the Custo ms Department that the respondent had not declared correct quantity and value of the goods and on that ground the goods were liable to confiscation. Accordingly , seizure was effected under Section 110A of the Act. Aggrieved thereby, the wri t petition was filed before this Court on the plea that the consignment had not yet been handed over to the writ petitioner and the writ petitioner had sought f or joint inspection of the consignment before delivery. A letter had been receiv ed from the office of the High Commissioner of India, Dhaka to the Customs offic ials that the exporter wanted return of the consignment as it had been sent by m istake. Thus, there being a mistake on the part of the exporter, the allegation that the writ petitioner had mis-declared the quantity and value of the goods wa s unfounded. The writ petition was opposed by submitting that the writ petitioner did not raise any objection at the time of receipt of the consignment and, thus, th ere was an attempt to illegally import excess goods by avoiding payment of impor t duty rendering the goods liable to be confiscated. Learned Single Judge held that there was no material to show that the wr it petitioner had attempted to import the goods by avoiding payment of import du ty. Before delivery the question of accepting consignment does not arise. The pe titioner had applied for joint inspection and it could be only thereafter that a llegation could be made against the writ petitioner that mis-declaration had bee n made. The bill of entry had not been filled up and no declaration as such can be said to have been made by the writ petitioner. Referring to the decision of t he Hon’ble Supreme Court in Northern Plastic -vs- Collector of Central Excise, ( 1998) 6 SCC 443, the learned Single Judge observed that the conclusion that the goods had been mis-declared has to be with reference to the bill of entry. We have heard Mr B Sarma, learned Standing Counsel, Central Excise & Cus toms for the appellant and Mr KN Choudhury, learned senior counsel for the respo ndent/ writ petitioner. Learned counsel for the appellant submits that the show cause notice dat ed 3.9.2009 had been served on the respondent/ writ petitioner alleging attempt to clear goods in excess of quantity mentioned in the commercial invoice issued by the exporter. The writ petitioner applied for re-export of the consignment on the ground of mistake. But according to the Department, the issue as to whether the goods were consciously attempted to be mis-declared or it was a case of mis take of the exporter, had to be adjudicated upon in accordance with the statutor y provisions and it was not open to this Court to quash the proceeding by presum ing that the stand of the writ petitioner, that the consignment had been sent by mistake and that after joint inspection the writ petitioner would have made a c orrect declaration in the bill of entry, was correct. This plea was yet to be ad judicated upon and the statutory authority could not be debarred from such adjud ication in absence of lack of jurisdiction or illegality. Learned counsel for the respondent/ writ petitioner submits that it was a case of genuine mistake and after the impugned order of learned Single Judge, vide letter dated 28.5.2010, the respondent/ writ petitioner had been asked to s ubmit documents to enable his request for re-import being considered. In these c ircumstances, learned Single Judge was justified in quashing the proceedings. The question for consideration is whether adjudication on the allegation of attempt of mis-declaration can be stalled by accepting the stand of the resp ondent/ writ petitioner that the consignment of different quantity was sent by m istake and that the said stand was bonafide and that the writ petitioner had app lied for joint inspection and has not yet filled the bill of entry giving partic ulars in details. In our view, the adjudication could not be interfered with at this stage . We make it clear that we are not expressing any opinion on the correctness or otherwise of the stand of the respondent/ writ petitioner but the stand of a par ty that its action was bonafide and that higher quantity was exported by mistake has to be first gone into by the statutory adjudicating authority and the absen ce thereof does not render the proceeding without jurisdiction. Summary proceedi ngs under Article 226 of the Constitution are not a substitute for adjudication, though jurisdictionally this Court may not be debarred from adjudicating upon e ven a disputed question of fact in a given case. Accordingly, while modifying the impugned order of quashing the adjudica tion proceedings, we dispose of this appeal by directing that pending adjudicati on, the seized goods may be conditionally returned to the respondent/ writ petit ioner against an appropriate bond. The appropriate authority will be at liberty to adjudicate upon the show cause notice in accordance with law, after due oppor tunity to the petitioner. This order will also not debar consideration of the re quest of the respondent/ writ petitioner for re-export/ return of the goods to t he exporter, in accordance with law.