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MGM International Exports Versus The Commissioner of Customs, The Assistant Commissioner of Customs

Refund of Deposit Demurrage, wharffage and stock loss charges Inclusion in Assessment Value Vide order dated 20.11.2009, respondent was directed not to include demurrage, wharffage and stock loss charges into assessable value, however, in spite that, second respondent has not finalised assessment of 63 imports already made Held that:- Respondents have not come forward to offer any explanation for non-implementation of said orders Petitioner made various representations, to finalise pen .....

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the Petitioner : Ms. Lakshmi Sriram For the Respondents : Mr. K. Mohanamural, Sr. Panel Counsel ORDER The present writ petition is the third round of litigation seeking for the same prayer as that of the prayer made in the earlier two round of litigations viz. seeking writ of mandamus to direct the respondents to finalise the assessment relating to the imports in accordance with the direction of the Hon'ble First Bench in W.A.No.1450 of 2009, dated 20.11.2009, and the direction of the learn .....

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ten Bills of Entry. However, the grievance of the petitioner is, the second respondent has wrongly included the demurrage charges, wharrfage and stock loss under 'assessable value' and raised a demand of ₹ 3,24,298/- and ₹ 77,047/- by way of additional customs duty. Therefore, disputing the said charges, the petitioner preferred an appeal before the Commissioner of Customs (Appeal). The said appellate authority, by orders dated 06.09.1996 and 10.12.1996, allowed the appeals .....

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sioner of Customs (Appeals), by order dated 31.03.1998, agreed with the contention of the petitioner. However, the department once again took up the matter before the CESTAT. The CESTAT passed Majority Order Nos.268 to 275 of 2005, dated 18.04.2005, giving a finding against the petitioner. Challenging the said order of the CESTAT, the petitioner had filed Writ Petition No.13584 of 2005 and this Court, by order dated 02.12.2008, dismissed the same on the ground of alternative remedy available und .....

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to file another writ petition in W.P.No.32961 of 2012 seeking a direction to the respondents to finalise the assessment relating to the imports in accordance with the direction of the Hon'ble First Bench as stated supra. This Court, by order dated 07.01.2013, once again directed the second respondent to rework and finalize the assessment in terms of paragraph Nos.6 and 7 of the order passed in W.A.No.1450 of 2009, dated 20.11.2009. 3. By narrating so the facts, learned counsel contended, iro .....

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dingly, today, he appeared before this Court by filing a counter affidavit. Learned standing counsel appearing for the respondents submitted that after the order passed by this Court on 20.11.2009 in W.A.No.1450 of 2009, it was found on scrutiny that the original triplicate copies of the Bills of Entries were not produced by the importer/petitioner herein, therefore, a detailed letter was sent to the petitioner on 01.03.2010 informing them about the documents required for finalizing the assessme .....

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ection for acceptance or otherwise on 20.02.2013. In this process, it was also brought to the notice of the department that a similar case is pending before the Hon'ble Apex Court for the same importer / petitioner herein and that the Mangalore Customs was asked to inform the Chennai Custom House with respect to the case details. Subsequently, it was ascertained that both the cases were different because the case in Chennai pertained to the period from July 2001 to March 2003. Only thereafte .....

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5. This Court, on receiving the file from the department, perused the legal opinion given by the department counsel Mr.E.Vijay Anand on 26.10.2010, whereby he opined that the department has suffered inordinate delay in preferring the appeal before the higher Court, therefore, he has given an option either to accept the order passed by this Court or to prefer an appeal facing the risk of huge delay. It is not known whether such opinion of the department counsel accepted or not, however, from the .....

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20.11.2009 and refund the deposit of ₹ 22,11,379/- collected from the petitioner with interest, this Court, by order dated 07.01.2013, directed the second respondent to rework and finalize the assessment without including demurrage charges, wharrfage and stock loss under the 'assessable value'. Ironically, the respondents have not even come forward to offer any explanation for non-implementation of the above said orders of this Court. Therefore, when the matter was taken up on 02.0 .....

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ct that the second respondent has joined the duty only on 01.04.2015, is not inclined to proceed against him for non-implementation of the order passed by the Hon'ble First Bench in W.A.No.1450 of 2009, dated 20.11.2009 and one another order passed by the learned Single Judge in W.P.No.32961 of 2012, dated 07.01.2013, as admittedly the said officer was not holding the charge then. However, when the decision of the Hon'ble First Bench of this Court in W.A.No.1450 of 2009, dated 20.11.2009 .....

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ed positively to finalise the assessment to refund the deposit of ₹ 22,11,000/- with interest with reference to the payment made along with the bills of entries at the time of import of the goods. Therefore, the inaction on the part of the respondent in not finalizing the assessment relating to 53 imports as per the direction of the Hon'ble First Bench as stated above is highly deplorable. 7. This apart, one more disheartening fact is that the petitioner, finding that the respondents h .....

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ection to the second respondent to rework and finalise the assessment in terms of paragraph Nos.6 and 7 of the order passed by the Hon'ble First Bench, again, the respondent department has not implemented the said order, when they are statutorily bound by such direction. 8. In this regard, it is more appropriate to refer to a judgment of the Hon'ble Division Bench of this Court in G.Rajaram v. T.K.Rajendran, I.P.S., and others, 2010 (4) CTC 407, wherein this Court, while emphasising upon .....

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ainst the contemnors therein and imposed costs of ₹ 1,00,000/- payable to the petitioner therein. 9. Recently, our Hon'ble First Bench of this Court in K.K.Ramesh v. the Government of Tamil Nadu (W.P.No.20002 of 2014, dated 25.08.2014), showing expressive concern on the delay and non-implementation of the Court order, has directed the Chief Secretary of this State to examine this problem and issue necessary circular to all the departments asking them to implement the Court order, by ma .....

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