9911796707
TMI Blog2010 (4) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... nts. CORAM: V. C.DAGA & K. K. TATED, JJ. JUDGMENT (PER: V.C.DAGA,J.) 1. This petition filed under Article 226 of the Constitution of India is directed against the communications dated 29th September, 2009 and 1st October, 2009 issued by the Deputy Commissioner of Customs, CIU, JNCH (respondent NO.4) with further prayer to forthwith permit clearance of the goods covered by the Bills of Entry Nos.649199 dated 26th August, 2009 and 650812 dated 27th August, 2009 by extending the benefit of Notification No. 26/2000Cus dated 1st March, 2000 without any conditions. Communication dated 29th September, 2009 calls upon the petitioner to submit bank guarantee equivalent to the amount of Rs.88,30,137/for the aforesaid two bills of entry along with past 28 bills of entry finally assessed during the year 2009 with further directions to the petitioner to submit bond for the sum of Rs. 15,75,33,199/in respect of CVD for the past 28 bills of entry and basic customs duty. By another communication dated 1st October, 2009, the petitioner once again informed that the Commissioner of Customs (Import) has accepted the petitioner's request for provisional release of the consignment with the subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent No.2 to look into the matter and allow clearance of the imported consignments. In response to the said request of the petitioner, respondent No.4 vide his letter dated 29th September, 2009 called upon the petitioner to submit bank guarantee equivalent to the amount of Rs.88,30,137/in respect of basic customs duty for the said two bills of entry and for the past 28 bills of entry filed in the year 2009 with further direction to submit a bond for the amount of Rs. 15,75,33,199/in respect of CVD for the past 28 bills of entry and BCD. 6. The petitioner, vide letter dated 30th September, 2009 informed respondent No.4 that past 28 bills of entries have no connection whatsoever to the present consignments and in any case, if the department feels that in respect of the past bills of entry the petitioner is liable to pay duty on the imported consignments of PTPR, a proper show cause notice in that behalf may be issued to enable the petitioner to justify his stand. By the said letter, the petitioner also requested respondent No.4 to allow him to clear the imported consignments since he had already deposited the amount in respect of CVD and the goods detained were incurring heavy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose of determination of proper duty. In his submission, Section 28 of the Act empowers the competent officer to levy duty if the same has not been levied or has been short levied. He submits that section 18 and 28 operate in different sphere i.e. when there is no allegation of evasion of duty intentionally but there is bona fide dispute in respect of quantum of levy of customs duty. On the other hand, under Section 111(m) of the Act, if the goods do not correspond in respect of value or any other particulars disclosed in the bills of entry under the Act, then such goods are liable to be confiscated though the proper duty is to be quantified under Section 28 of the Act. He submits that the penalty for short levy or non levy of duty in terms of Section 114A includes penalty equal to the duty or interest. He further submits that the imported goods are liable to be adjudicated by invoking Section 111 of the Customs Act, which may result into confiscation and redemption fine with further penalty under Section 112 of the Customs Act. 11. Mr.Sethna submits that to safeguard the Govt. revenue, the condition of execution of bond and bank guarantee with undertaking has been imposed. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt since October, 2009, no steps in that direction were taken till date. Prior to granting Rule vide order dated 7th December, 2009, this petition was heard by this Court on more than 3 to 4 occasions. Every time, this Court was told that the show cause notice is being issued. However, in spite of lapse of more than 3½ months after admission of the petition, no steps were taken by the Revenue to issue show cause notice. Two consignments referred to hereinabove under the bills of entry dated 26th and 27th August, 2009 are lying with the Customs, from the date of communication of the order dated 1st October, 2009, and more than six months have passed thereafter. Consignment is suffering detention and demurrage charges. This inaction on the part of the Revenue cannot be allowed to yield further premium. The request made is not bona fide. Thus, the request of Mr.Sethna in this behalf did not find favour with this Court. CONSIDERATION 14. With the aforesaid rival contentions and the factual sketch drawn, we are called upon to decide the validity of two impugned communications dated 29th September, 2009 and 1st October, 2009. 15. The petitioner has no objection to accept conditions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... modern society, no authority can arrogate to itself the power to act in a manner which is arbitrary. Every State action or action of the statutory authority, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 and basic to the rule of law the system which governs us. Arbitrariness is the very negation of the rule of law. Satisfaction of this basic test in every State or statutory action is sine qua non to its validity and in this respect the statutory authority cannot claim comparison with a private individual even in the field of exercising judicial or quasi judicial powers. 18. Conferment of the statutory power together with the discretion which goes with it to enable proper exercise of the power is coupled with the duty to shun arbitrariness in its exercise and to promote the object for which the power is conferred, which undoubtedly is not for individual or private gain, whim or caprice of any individual. All persons entrusted with any such power have to bear in mind its necessary concomitant which alone justifies conferment of power under the rule of law. 19. The question, whether an impugned act is arbitrary or not, is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
