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2013 (1) TMI 726 - HC - CustomsBenefit of the concessional rate of duty at 5 per cent under Sl. No. 108 of the Notification No. 12/2012-Cus., dated 17th March, 2012 - Classification of goods - Violation of principle of natural justice - Held that:- Petitioner, in the view of this Court, was legitimately entitled to opportunity of hearing and in any case, the goods ought to have been sent for examination/testing as requested by the petitioner. - only because an appeal has been preferred in respect of the assessment order passed on September 28, 2012, this writ petition should not be entertained. So far as the appeal is concerned the same may be disposed of expeditiously preferably within two months from the date of communication of this order. However, the mere fact that the petitioner has once preferred an appeal does not estop the petitioner from invoking the jurisdiction of this Court under Article 226 of the Constitution of India. It is well settled that the existence of an alternative remedy of appeal does not operate as an absolute bar to entertaining a writ petition. There are certain well recognized exceptions to the rule of alternative remedy, one of them being violation of principles of natural justice. In the instant case, the impugned order of assessment has been passed in flagrant violation of the principle of natural justice. The proper officer shall cause the samples to be drawn from the consignment in question i.e., the consignment covered by the second Bill of Entry and send the same for testing to an appropriate laboratory. Subject to the condition that the petitioner furnishes a bank guarantee covering the balance duty that is the duty as self assessed by the petitioner and duty payable on the basis that the goods are classifiable under Tariff Head 3816 of the first schedule to the Customs Tariff Act, 1975, to the satisfaction of the Assessing Authority, the consignment covered by the second Bill of Entry shall be provisionally released - Decided conditionally in favour of assessee.
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