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TMI Blog2010 (4) TMI 823X X X X Extracts X X X X X X X X Extracts X X X X ..... nding that the order of assessment suffers from breach of natural justice and is wholly based on the standing order No. 36/2008 dated 13th August, 2008 which is ultra vires Section 14 of the Customs Act, 1962 ("Customs Act" for short). Factual Matrix : 3. The petitioners are a private limited company having their registered office at 7 and 8th Floors, Delta Towers, Sigma Soft Tech Park No. 7, Whitefield Main Road, Bangalore. The petitioners are a part of landmark group located at Dubai engaged in the business of selling the goods in retail and has over 750 stores across the world. The products traded in the petitioners' stores include Apparel, Footwear, Lifestyle Products, Furniture, Furnishings and Baby Products. These products are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made basis of the assessment. According to the standing order, in order to arrive at assessable value the retail selling price (MRP) or weight of the goods is to be considered and a deduction of 60% is to be allowed towards various expenses viz. margin of the retailer, discount on wholesale purchase, towards transportation, storage and other expenses apart from VAT and taxes. According to the petitioners, the respondent No. 3 is assessing the goods as per the standing order dated 13th August, 2008, discarding the transaction value recognised by the Act and Rules framed thereunder. This act of the respondent No. 3 is the subject matter of challenge in the present petition filed under Article 226 of the Constitution of India. Points Urged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C.) and Commissioner v. Bureau Veritas, 2005 (181) E.L.T. 3 (S.C.). 6. Mr. Shah while attacking assessment of the bills of entry dated 22nd August, 2008 and 4th September, 2008 strongly urged that the said assessment is in breach of principles of natural justice as no opportunity of hearing was given to the petitioners before making the impugned assessment. He, thus, submitted that the order of assessment is ab initio void and liable to be quashed and set aside and prayed for remitting the matter back to the assessing authority with direction to assess the same afresh ignoring the standing order No. 36/2008 dated 13th August, 2008 since the said standing order is ultra vires Section 14 of the Customs Act. 7. At the outset, Mr. J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Plastics Pvt. Ltd. v. Union of India, 2009 (235) E.L.T. 193 (S.C.), judgment of this Court in the case of Godrej Industries Limited v. Union of India, 2004 (171) E.L.T. 5 (Bom.) and that of Gujarat High Court in the case of Ramchandra Art Silk Yarn v. Union of India, 2002 (139) E.L.T. 540 (Guj.) in support of his submission. 9. So far as challenge to the assessment of the bills of entry dated 22nd August, 2008 and 4th September, 2008 is concerned, Mr. Jetly found it difficult to counter the argument advanced by Mr. Shah that order of assessment is in breach of principles of natural justice. Mr. Jetly, thus, submits that the impugned order of assessment be set aside by consent of parties without examining merit or demerits thereof an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er cannot ignore the law laid down by the Apex Court from time to time. Readily available judgment is quoted hereinbelow. 11. In the case of Indian Railway Construction Co. Ltd. v. Ajay Kumar, (2003) 4 SCC 579, the Apex Court ruled that whenever there is failure to exercise discretion under the discretionary powers construed by the statute then it is permissible by the appellate Court or the appellate authority or Tribunal and the higher Courts to take note of such inaction and give direction to consider the same in accordance with law. The Apex Court in the case of U.P. State Road Transport Corporation and Another v. Mohd. Ismail and others, (1991) 3 SCC 239, in para-13, observed as under : "13. In the instant case, the Corpora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amed thereunder. It shall be the duty of the assessing officer to consider the case of the assessee independent of the said standing orders and the guidelines framed therein. The said standing orders and the guidelines framed therein, as admitted by Mr. Jetly, cannot have the effect of superseding provision of Section 14 of the Customs Act and Customs Valuation Rules which have a statutory force. The guidelines framed do not have statutory force. They are only meant by way of guidance to the assessing officer and the said guidelines can only be used where the rules are silent. These guidelines cannot be used where they are running counter to the statutory provisions. Clarification submitted by Mr. Jetly and clarified by this Court herein wo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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