TMI Blog2015 (5) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... cond petitioner herein was arrayed as the 4th appellant. The antecedents of the said petitioners, with reference to the above case, show that there was every reason for the respondent Customs Department to have doubted or raised some suspicion as to the place of origin and the transaction concerned. As such, it is not merely with reference to the ongoing enquiry with reference to some other trader, that provisional assessment is ordered imposing condition, but also with reference to the ongoing enquiry, pertaining to the transaction/import done by the petitioners 1 and 2. This being the position, the matter requires to be considered in detail and there is absolutely nothing wrong on the part of the respondents in having pursued the course under Section 18 (1) (c), ordering provisional assessment. - Demand of diiferential duty reduced as per provisional assessment - Decided partly in favour of assessee. - WP(C). No. 6722 of 2015 (M) - - - Dated:- 9-3-2015 - P. R. Ramachandra Menon,J. For the Petitioner : Sri Devan Ramachandran, Adv, T Rajasekharan Nair, Sri Adarsh Kumar For the Respondent : Sri N Nagaresh, Asst Solicitor General, Sri Thomas Mathew Nellimoottil, SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stands covered by Exts. P19 and P20 phytosanitary certificates issued by the Department of Agriculture, Sri Lanka in the case of the first and second petitioners. Copies of the import lease orders issued by the Ministry of Agriculture, Government of India to the petitioners also have been produced as Exts. P21 to P23. 5. On raising some query as to the consignment by the Customs, vide Exts. P24 to P26, they were replied by the petitioners vide Exts. P27 to P29. But the third respondent chose to pass Exts. P30 to P32 orders on 02.03.2015 intending to proceed with provisional assessment under Section 18 of the Act, requiring the petitioners to satisfy 35% of the differential duty, as against the vested right of the petitioners to have the import by satisfying duty only @ 4%. This unconscionable burden made the petitioners to approach this Court challenging the said proceedings, raising many a ground. 6. Heard the learned counsel for the petitioners as well as the learned standing counsel appearing for the Department of Customs. 7. Mr. Devan Ramachandran, the learned counsel appearing for the petitioners points out that no provisional assessment is warranted in the instant c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that India stands in the forefront with a production of 330000 metric tons for the year '2003', with an area of cultivation of 290000 hectares. The factual particulars stated as downloaded from the Internet are placed for consideration of this Court, which reads as follows : Areca nut producing countries : Areca nut has been cultivated as a cash crop in the Asian continent for quite a long time now. Even today, the regions that produce maximum quantity of nut are the same areas where the areca nut came into existence i.e. the Southeast Asia, The world production of areca nut sums up to around 0.64 million tons, Asian contribution being the maximum. India is the leading country in context of production contributing to around 51 % of world's total production followed by China with 25 % share. The list depicts the major producers of the nut with their respective production figures for the year 2003. India (330000 metric tons) China (162253 metric tons) Myanmar (57000 metric tons) Bangladesh (51000 metric tons) Indonesia (41000 metric tons) Thailand (26000 metric tons) Malaysia (1300 metric tons) Regarding the area under the cultivation of be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that, the circumstances contemplated by the Division Bench of this Court in W.A. No. 107 of 2011 are not prevailing in the instant case. The situation dealt with by the Division Bench in the said case was with reference to the large number of importers from North and East India, who were importing massive quantity from abroad, making the department to face the risk of losing huge revenue because of not turning up for final assessment. In the case of the petitioners herein, they are having proper identity, doing business in Kerala for several years with unblemished track record and that they cannot be branded as fly by night traders . Section 18 is only an exception to Section 17 of the Act, which provision stipulates that, if final assessment is possible, whether it is import or for export, the goods should be released after the final assessment and collection of duty. Section 18 (1) (c) covers the situation, where the importer/exporter has produced all the necessary documents and furnished full information for assessment of duty, but the officer finds it necessary to make further enquiry for assessing the duty, when the authorised officer can make provisional assessment in ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer should realise that the best and safest course open to the Department is to demand Bank Guarantee from the local branch of a Nationalised Bank for balance provisional duty determined, so that recovery is ensured without any necessity for the Department to chase the parties and looking for their assets. In fact, credentials of the importer / exporter and such other matters should weigh with the Department in relaxing the condition for security, which in thenormal course should be Bank Guarantee. Considering the factual position that some gunny bags were located in the container doubting the country of origin, the Division Bench felt the necessity to impose condition. 12. In W.P.(C) No. 2803 of 2015, the suspicion felt by the authorities of the Customs Department was on finding gunny bags in the containers. It was doubted, whether it was of Pakistan origin as claimed or was it of Indonesian origin. The commodity, if of Pakistan origin, was to have a tax only at a concessional rate; whereas in the case of Indonesian origin, it was 108 %. Referring to the materials produced, it was observed by a learned Judge of this Court in paragraph 3 of the judgment that, the releva ..... X X X X Extracts X X X X X X X X Extracts X X X X
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