Tower Steels (India) Limited Vs. Commissioner of C. Ex. and Cus., Madurai - Court Judgment

Excerpt:
- orderk. raviraja pandian, j. 1. the above writ petition is filed for issuance of writ of certiorarified mandamus to call for the records relating to the order passed by the 2nd respondent in c. no. iv/16/2/2000/adjn. (vol ii), dated 8-5-2001 and to quash the same as illegal, arbitrary and without authority of law and further direct the respondent to assess and permit clearance of the imported materials covered under bill of entry no. 00006, dated 13-3-2001 on accepting the assessed customs duty as per bill of entry.2. the case of the petitioner is that the petitioner has imported light melting scraps (misprint sheets and sheet cutting scraps) that the petitioner classified the goods as light melting scraps falling under sub-heading 7204.49 of customs tariff act and the rate of duty applicable is 10%, but however the department on suspicion seized the goods under mahazar that the petitioner by his letter dated 2-4-2001, 11-4-2001 and 26-4-2001 requested for the release of the goods under section 18 of customs act that ultimately, the second respondent by his letter dated 8-5-2001 has replied that section 18 of the customs act, 1962 could be invoked only when the importer is not in a position to produce any document or is unable to furnish any information for proper assessment of goods. hence the request of the petitioner for provisional assessment and release of the goods under section 18 has been rejected. aggrieved by the said order, the petitioner filed the present writ petition with the prayer as stated above.3. the department filed a counter affidavit affidavit wherein the respondents while controverting the various allegations made in the affidavit contended inter alia that this is a clear case of mis-declaration and show cause notice dated 28-6-2000 has also been served on the petitioner on 13-7-2000 and as such now the prayer as sought far cannot be granted and if the prayer granted, the interest of the revenue would be jeopardised. hence the respon-dents sought for dismissal of the above writ petition. however, in the interest of justice, the department has also come forward with a proposal for provisional release of the goods on the petitioner making payment of differential duty of rs. 16,64,505/- besides furnishing appropriate bond for value rs. 1.35 crore with security by way of bank guarantee for a sum of rs. 35 lakhs under section 112 of the customs act.4. i heard the arguments of the learned counsel for the petitioner as well as the additional central government standing counsel representing the revenue.5. the issue involved as to whether there is a mis-declaration has to be decided in the appropriate adjudication proceedings on the basis of the show cause notice issued. the only aspect that has to be now decided is that in the interest of justice whether pending disposal of the adjudication proceedings, subject to the appellate remedy available, the goods can be released and if so, the condition under which the goods could be released. as stated above, the department has come out with the counter affidavit that if the entire amount as proposed in the show cause notice is secured as stated in para 24 of the counter affidavit, the department has no objection for the provisional release of the goods.6. the basic contention of the department is that the duty payable for the goods imported by the petitioners comes to rs. 27,84,501/-. if that be so the difference of duty comes to rs. 16,64,505/-. without going into the merits of the case, for the purpose of disposal of the case, a direction is hereby issued to the 3rd respondent to release the goods on the petitioner apart from paying the duty as declared by them and paying 20% of the differential duty of rs. 16,64,505/- and also on the petitioner furnishing bank guarantee for the balance 80% of rs. 16,64,505/- besides the petitioner executing a personal bond to the value of rs. 1.35 crore.7. with this observation, the writ petition is disposed of. consequently, the connected w.m.p. is dismissed.

Judgment:
ORDER

K. Raviraja Pandian, J.

1. The above writ petition is filed for issuance of writ of certiorarified mandamus to call for the records relating to the order passed by the 2nd respondent in C. No. IV/16/2/2000/Adjn. (Vol II), dated 8-5-2001 and to quash the same as illegal, arbitrary and without authority of law and further direct the respondent to assess and permit clearance of the imported materials covered under Bill of Entry No. 00006, dated 13-3-2001 on accepting the assessed customs duty as per Bill of Entry.

2. The case of the petitioner is that the petitioner has imported light melting scraps (misprint sheets and sheet cutting scraps) that the petitioner classified the goods as Light Melting scraps falling under sub-heading 7204.49 of Customs Tariff Act and the rate of duty applicable is 10%, but however the Department on suspicion seized the goods under Mahazar that the petitioner by his letter dated 2-4-2001, 11-4-2001 and 26-4-2001 requested for the release of the goods under Section 18 of Customs Act that ultimately, the second respondent by his letter dated 8-5-2001 has replied that Section 18 of the Customs Act, 1962 could be invoked only when the importer is not in a position to produce any document or is unable to furnish any information for proper assessment of goods. Hence the request of the petitioner for provisional assessment and release of the goods under Section 18 has been rejected. Aggrieved by the said order, the petitioner filed the present writ petition with the prayer as stated above.

3. The Department filed a counter affidavit affidavit wherein the respondents while controverting the various allegations made in the affidavit contended inter alia that this is a clear case of mis-declaration and show cause notice dated 28-6-2000 has also been served on the petitioner on 13-7-2000 and as such now the prayer as sought far cannot be granted and if the prayer granted, the interest of the revenue would be jeopardised. Hence the respon-dents sought for dismissal of the above writ petition. However, in the interest of justice, the Department has also come forward with a proposal for provisional release of the goods on the petitioner making payment of differential duty of Rs. 16,64,505/- besides furnishing appropriate bond for value Rs. 1.35 crore with security by way of bank guarantee for a sum of Rs. 35 lakhs under Section 112 of the Customs Act.

4. I heard the arguments of the learned Counsel for the petitioner as well as the Additional Central Government Standing Counsel representing the revenue.

5. The issue involved as to whether there is a mis-declaration has to be decided in the appropriate adjudication proceedings on the basis of the show cause notice issued. The only aspect that has to be now decided is that in the interest of justice whether pending disposal of the adjudication proceedings, subject to the appellate remedy available, the goods can be released and if so, the condition under which the goods could be released. As stated above, the Department has come out with the counter affidavit that if the entire amount as proposed in the show cause notice is secured as stated in para 24 of the counter affidavit, the Department has no objection for the provisional release of the goods.

6. The basic contention of the department is that the duty payable for the goods imported by the petitioners comes to Rs. 27,84,501/-. If that be so the difference of duty comes to Rs. 16,64,505/-. Without going into the merits of the case, for the purpose of disposal of the case, a direction is hereby issued to the 3rd respondent to release the goods on the petitioner apart from paying the duty as declared by them and paying 20% of the differential duty of Rs. 16,64,505/- and also on the petitioner furnishing bank guarantee for the balance 80% of Rs. 16,64,505/- besides the petitioner executing a personal bond to the value of Rs. 1.35 crore.

7. With this observation, the writ petition is disposed of. Consequently, the connected W.M.P. is dismissed.