TMI Blog2010 (4) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... t an opportunity to putforth his say. Once, he has elected to file his say and objection is raised, then the adjudicating authority is free to adjudicate upon rival contentions in accordance with law by reasoned order following principles of natural justice. But no law permits the Revenue to twist the arms of the importer in the manner in which it is being done through the communication dated 1st October, 2009. The action of the Revenue to the extent of their duty demand in respect of CVD for the past import covered under 28 bills of entry during the year 2009 is clearly bad and illegal and unsustainable in law besides being in breach of principles of natural justice. A costs quantified in the sum of Rs.25,000/(Rs.Twenty Five Thousand Only) to be paid by the Revenue to the petitioner for their unjustifiable and arbitrary decision with respect to past imports covered by 28 bills of entry during the year 2009, which respondents could not justify on any count. - 8906 OF 2009 - - - Dated:- 6-4-2010 - Mr.Biharilal Singhal, carrying on business in the name style of HiTech Corporation, as a sole a Proprietorship thereof having their office at R798, Hasti Industrial Premises Coop. So ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled during the current year i.e.2009. 3) On furnishing and execution of Bank Guarantee equivalent to the amount of Rs.88,30,137/in respect of BCD for the above said two Bill of Entries and for the past 28 Bill of Entries filed during the current year i.e.2009. The aforesaid demand by respondent No.4 is the subject matter of challenge in the petition. FACTUAL CONTEXT 2. The petitioner is proprietor of M/s.HiTech Corporation carrying on business inter alia; as importers of Printed Thermal Paper Roll ("PTPR" for short) having their office at Navi Mumbai. The petitioner has been regularly importing from Sri Lanka PTPR through Nhava Sheva Port and dealing in such imported PTPR in India. According to the petitioner, he has filed more than 100 bills of entry seeking clearances of similar/identical goods. All the past consignments have been released as and by way of final assessment. 3. The present dispute relates to PTPR imported by the petitioner from Sri Lanka covered under the bills of entry Nos.649199 dated 26th August, 2009 and 650812 dated 27th August, 2009 detailed hereinbefore. It appears that after filing of the bills of entry referred to herein, the goods were with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not accept the above demands and has invoked writ jurisdiction of this Court to challenge their action and order. RIVAL SUBMISSIONS: 8. Mr.Shah, learned Counsel for the petitioner submits that the respondents have no power, authority and/or jurisdiction to refuse to allow clearances of the goods covered by the aforesaid bills of entry Nos.649199 and 650812 dated 26th August, 2009 and 27th August, 2009 respectively. He submits that the respondents are withholding the clearance of goods covered by the aforesaid two bills of entry until the petitioner makes payment of duty and give security for the consignment which were already assessed and allowed to be cleared is nothing but an act of twisting the arms of th petitioner to pressurize him to succumb to their pressure tactics. This modus adopted by Revenue, according to Mr.Shah is clearly not permissible in law. He further submits that the petitioner has already deposited CVD under protest although not payable. According to him, there is no justification in not allowing the goods covered by two bills of entry referred to hereinabove. 9. Mr.Shah further submits that instead of issuing show cause notice in accordance with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted. He, thus, submits that the respondents are justified in imposing conditions of execution of bank guarantee with undertaking for the purpose of safeguarding Govt. revenue. 12. Mr.Sethna further submits that as per sub clause (4) of Section 17 of the Customs Act,1962 which states that notwithstanding anything contained in this section, imported goods or export goods may, prior to the examination or testing thereof, be permitted by the proper officer to be assessed to duty on the basis of the statements made in the entry relating thereto and the documents produced and the information furnished under subsection( 3); but if it is found subsequently on examination or testing of the goods or otherwise that any statement in such entry or document or any information so furnished is not true in respect of any matter relevant to the assessment, the goods may, without prejudice to any other action which may be taken under this Act, be reassessed to duty. He, thus, submits that the goods imported under two bills of entry dated 26th and 27th August, 2009 were found misdeclared at the time of examination, the department is thus empowered to stop the consignment for clearance for home consu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ports covered under the 28 bills of entry during the year 2009 and demand for differential payment of amount of duty in respect of those imports. Mr.Sethna has fairly stated that in absence of show cause notice the demand with respect of past imports covered under 28 bills of entry assessed during the year 2009 can not be justified. Even the judgment in Kundan Rice Mills Ltd. (Supra) on which reliance is placed is also misplaced in the fact and circumstances of the case in hand. Under these circumstances, the communication dated 1st October, 2009 to that extent is liable to be quashed and set aside. 16. We were also taken to the various provisions of the Act by Mr.Shah as well as Mr.Sethna in support of their respective submissions. The Revenue cannot demand the amount of duty in respect of past CVD on the imports covered under 28 bills of entry which were already assessed and cleared during the year 2009, in the absence of any positive action by issuing show cause notice to set up demand in this regard. Needless to mention that once the show cause notice is issued the assessee/noticee would get an opportunity to putforth his say. Once, he has elected to file his say and objectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every statutory order must be informed by reason and it follows that an act uniformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that 'be you ever so high, the laws are above you'. (Sew Kumari Shrilekha Vidyarthi and Ors. Vs. State of U.P. Ors.(1991) 1 SCC 212 ) 20. Having said so, we are constrained to set aside the impugned order to the extent it makes demand of the differential amount of duty in respect of CVD, execution of bond and bank guarantee with respect to past imports covered under 28 bills of entry filed, assessed and acted upon by releasing goods during the year 2009 and maintain the action and terms put by the respondents in acceptance of the petitioner's prayer for provisional release of the consignments covered by bills of entry No. 649199 and 650812 dated 26th 27th August, 2009. We may clarify that this order shall not prec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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