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2005 (7) TMI 115 - HC - CustomsChemical test - Challenge to - Show cause notice - Whether the imported goods are eligible for concessional duty or not - "seconds and defective goods" are ineligible for the concessional duty, Notification No. 21/02, as amended - HELD THAT:- It is alleged by the department that this is a case of blatant mis-declaration of description of the goods with a view to evade huge amount of duty at higher rate. A show cause notice has been issued proposing to take action under Section 111(m) and 112 (a) of the Customs Act, 1962 in connection with the above imports and the appellant has to face the adjudication proceedings. It is alleged that the request for the re-test by a different agency is not permissible. It is further alleged that there is no provision entitling the appellant to get samples of the detained goods. It is further alleged that both the department as well as the trade are accepting the opinion furnished by the National Metallurgical Agency, which is a Government Agency. It is alleged that the writ petitions are premature, as they have been filed at a show cause notice stage. It may be mentioned that the National Metallurgical Laboratory is a neutral body and we see no reason why its report should be biased against the appellant. We cannot understand the apprehension of the appellant in this connection. At any event, the department has stated that it is prepared to give an opportunity to the appellant to cross-examine the chemical examiner of the National Metallurgical Laboratory who tested the samples. We cannot understand what more the appellant want. It seems that the appellant only wants to protract and delay the adjudication proceedings. In our opinion, the appellant can cross-examine the chemical examiner of the National Metallurgical Laboratory in connection with these two objections, but he cannot claim any right to draw samples from the detained goods, since there is no provision in law permitting taking of such samples. As regards the appellant's prayer for a direction to the first respondent to make a provisional assessment u/s 18 of the Customs Act while releasing the goods detained, it may be mentioned that part of the goods seized have already been released provisionally, detaining a certain amount as security to safeguard the differential duty amount and adjudication liabilities as per the request of the appellant in its letter dated 18-11-2004. Thus, the authorities have acted in a fair manner. It may be mentioned that Section 18(1) of the Customs Act does not make it mandatory on the Customs Officer to make a provisional assessment. The use of the word "may" in Section 18(1) indicates that it is the discretion of the Customs Officer to make a provisional assessment or not, and he is not bound to do so. Of course, he cannot exercise such discretion arbitrarily, but in this case we are of the opinion that the Customs Officer has acted fairly and not arbitrarily, as he has already released part of the goods and detained the other part as security to safeguard the interest of the Revenue. Thus, there is no force in these appeals, and they are dismissed accordingly. However, we direct that the adjudication proceedings be completed by the authorities concerned expeditiously. No costs. Consequently, connected W.A.M.Ps are also dismissed.
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