Judgment :- The scope of this Writ Petition lies within a narrow compass. On 3-9-1965 the Assistant Collector of Central Excise, Integrated Division, Madras, passed an order confiscating certain goods seized from the petitioner under Section 111(d) of the Customs Act, 1962 and giving him an option to clear the goods for home consumption on payment of a fine of Rs. 2, 000/- under Section 125 of the Act and imposing a personal penalty of Rs. 250/- under Section 112 of the Act. Against this order, the petitioner preferred an appeal to the Appellate Collector of Customs, Madras. That Officer passed an order dated 11-9-1966 after considering the points urged before him on behalf of the petitioner herein, the concluding portion of which is as follows :- "I uphold the contention of the appellant that in spite of his demand to hold an enquiry in the presence of his advocate the Asstt. Collector has not only held an enquiry but has examined the mahazar witnesses after the personal hearing was given to the Advocate and that too in the absence of the appellant. I feel that the principles of natural justice in this case have been violated by following the procedure stated above. I, therefore, vacate the Asstt. Collector's Orders without prejudice to his right to institute a de novo proceedings in this case." * The present Writ Petition under Article 226 of the Constitution of India has been filed to quash the last sentence of the order which I have extracted above. The learned Counsel for the petitioner contends that the Appellate Collector has no power to issue the direction which he did in the last sentence of the order and the customs authorities have no power under the Act to start the proceedings de novo. In my opinion, this contention is really mis-conceived. As the last sentence of the order of the Appellate Collector extracted above shows, he has not given any direction to the Assistant Collector to start the enquiry de novo. In my opinion, this contention is really mis-conceived. As the last sentence of the order of the Appellate Collector extracted above shows, he has not given any direction to the Assistant Collector to start the enquiry de novo. The extract given above clearly indicates that the Appellate Collector was not allowing the appeal of the petitioner on merits but was setting aside the order of the Assistant Collector because of a procedural irregularity committed by the Assistant Collector, that irregularity being a failure to conduct an enquiry in the presence of the appellant's advocate as demanded by the appellant and his having examined two Mahazar witnesses behind the back of the appellant after the personal hearing was over and his having taken into account the evidence of those witnesses. Since the order of the Assistant Collector was set aside only because of a procedural irregularity, the original authority was entitled to take proceedings afresh. Further, the last sentence of the order does not really constitute any direction by the Appellate Collector to the Assistant Collector to institute proceedings afresh. All that he pointed out was that though he was setting aside the order of the Assistant Collector, since that order was not set aside on merits, the setting aside of the order was without prejudice to the rights of the Assistant Collector to institute a de novo proceedings in this case. In support of his attack against this part of the order, the learned counsel for the petitioner relied on Section 128 (2) of the Customs Act, 1962, and according to that Section the Appellate Authority may, after giving an opportunity to the appellant to be heard, if he so desires, and making such further inquiry as may be necessary, pass such order as it thinks fit, confirming modifying or annulling the decision or order appealed against and the contention is that in addition to the doing of these things, he has no power to give any direction. It is unnecessary for me to examine the soundness of this contention because as I pointed out already, the Appellate Authority in this case has not really given any direction to the Assistant Collector and even if the observation made by him in the last sentence of the order was not present, it would still be open to the Assistant Collector to institute a de novo proceedings against the petitioner. 2.The next contention of the learned counsel is that the proceeding before the Customs Authorities being penal in character and partaking of criminal nature, the principles of criminal jurisprudence should apply and if they are so applied once the order has been set aside there is no power to conduct a de novo enquiry in the absence of a specific power in this behalf. In this context the learned counsel relied on a decision of the Supreme Court in Amba Lal v. Union of India in particular the following passage : "This Court has held that a customs officer is not a judicial tribunal and that a proceeding before him is not a prosecution. But it cannot be denied that the relevant provisions of the Sea Customs Act and the Land Customs Act are penal in Character. The appropriate customs authority is empowered to make an inquiry in respect of an offence alleged to have been committed by a person under the said Acts, summons and examine witnesses, decide whether an offence is committed, make an order of confiscation of the goods in respect of which the offence is committed and impose penalty on the person concerned, see Ss. 168 and 171A of the Sea Customs Act and Ss. 5 and 7 of the Land Customs Act. To such a situation though the provisions of the Code of Criminal Procedure or the Evidence Act may not apply except insofar as they are statutorily made applicable the fundamental principles of criminal jurisprudence and of natural justice must necessarily apply. If so, the burden of proof is on the Customs authorities and they have to bring home the guilt to the person alleged to have committed a particular offence under the said Acts by adducing satisfactory evidence." * In the first place, the Supreme Court in that case and in particular in the observation extracted above, was considering the question of burden of proof and it is in that context, the Supreme Court made the above observation. Secondly the petitioner has not been found innocent of the charge alleged against him on merits and the order of the Assistant Collector was set aside only because of a procedural irregularity as pointed out by me already. Secondly the petitioner has not been found innocent of the charge alleged against him on merits and the order of the Assistant Collector was set aside only because of a procedural irregularity as pointed out by me already. To such a situation I am not able to understand, how even the application of principles of criminal jurisprudence will debar the original authority from proceeding further or taking proceedings afresh. 3.Learned Counsel then contended that there is no provision in the Act conferring power on the Assistant Collector to take proceeding afresh. In my opinion, when the order of an officer is set aside by an Appellate Authority not on merits but on the ground of procedural irregularity, the original authority is entitled to proceed afresh unless there is any statutory power preventing or prohibiting such proceeding. In this case, there is no provision in the Customs Act expressly or by implication which will have the effect of preventing the Assistant Collector from instituting proceedings afresh against the Writ petitioner. Consequently, I am unable to accept this contention of the learned counsel as well. 4.For these reasons, there are no merits in the Writ Petition and the Writ Petition fails and it is dismissed.