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2015 (10) TMI 605 - BOMBAY HIGH COURT

2015 (10) TMI 605 - BOMBAY HIGH COURT - 2016 (334) E.L.T. 612 (Bom.) - Dispute of personal hearing before Final Assessment - Petition filed on principles of natural injustice - Petitioner contends that a demand should precede a final assessment or any show cause notice is issued Further contends that principles of natural justice have been violated and opportunity of being heard to the Petitioner must be given - Petitioner appeals the quashing and setting aside the impugned communications Re .....

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eds and demand notice is quashed and set aside clarifying that in the event an order is passed in pursuance of SCN and after hearing the Petitioner, the Revenue can proceed to recover the tax or amounts due Decided in favour of the Petitioner. - Writ Petition No. 6658 of 2014 - Dated:- 29-9-2015 - S. C. Dharmadhikari And B. P. Colabawalla, JJ. For the Petitioner : Mr Prakash Shah with Mr Jas Sanghavi & Mr Prarsad Poojari For the Respondents : Mr Vijay Kantharia with Ms Anamika Malhotra J .....

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he same. 4) The Petitioners are also seeking to restrain the Respondents from enforcing the said communications and recovering any differential duty. The Petitioner is seeking a direction to the Respondents to cancel a final assessment of bill of entry dated 26th October, 2009 and pass a speaking order after affording an opportunity of being heard to the Petitioner. 5) The Petition is filed in this Court on 7th July, 2014. 6) The Petition proceeds to state that the Petitioner is export house sta .....

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ut and copies of the relevant documents are annexed as Annexures 'A' to 'D' to the Writ Petition. 7) The Petitioner relies upon a certain notification exempting the goods from customs duty. Concessional rate of duty was specified in the bill of entry relying upon this notification dated 1st March, 2002. It is the claim of the Petitioner that it submitted all the relevant documents to the Customs Department for assessment of the bill of entry. It also referred to certain view take .....

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s that on 18th March, 2010 and after the show cause notice was issued, the Superintendent of Customs (Preventive) - fourth Respondent to this Writ Petition inter alia requested the Petitioner to provide the original documents in respect of the general manifest of bill of entry mentioned in the Annexure attached to this letter so as to enable the Department to finalise the assessment of goods imported. In para 15 of this Writ Petition, the Petitioner points out that a detailed reply was given to .....

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terms of the show cause notice is made or there is an assessment of the bill of entry in accordance with law, no such communication can be addressed nor any recovery can be effected. It is based on this and urging that the principles of natural justice have been violated that this Writ Petition is filed. 8) It is urged by Mr. Shah appearing on behalf of the Petitioner that a demand or recovery should precede a final assessment or any show cause notice is issued, then, an adjudication and order .....

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. There was a provisional assessment of the bill of entry as per section 18(1) of the Customs Act, 1962 and which was undertaken at the request of the Petitioner. It was unable to furnish the original documents at the time of import and also for want of test results. There was a bond executed and in the circumstances, the authority demanded the differential duty. The notice to show cause was issued but thereafter, the assessment was finalised under section 18(2) of the Customs Act based on the d .....

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nstruct Mr. Kantharia before the next date as to whether the notice or communication Annexure 'J' at page 72 of the paper book dated 28th September, 2013 has been issued after finalisation of the bills of entries provisionally assessed and by an order in that behalf. If such an order has been passed, whether it was passed after hearing the Petitioner and when was it communicated to the Petitioner and whether a copy of the same can be placed on the file of this Writ Petition along with an .....

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he office records do not disclose that any hearing has been held before the order of finalisation of bill of entry was issued and preceding the demand notice/letter. Then, it is stated that the demand letter dated 6th May, 2011 has been despatched by Registered Post Acknowledgment Due on 14th May, 2011 at the office address but a copy of this order of finalisation of bill of entry i.e. the demand notice is not traceable at present in the office records. Reliance is placed on Annexures '2' .....

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here is a further record of a finalisation of the assessment and its communication to the Petitioner. 14) Once the Petitioner's essential averments in the Writ Petition have not been controverted or denied, then, it is clear that there was no adjudication preceding this letter of demand nor any order, which is stated to be appealable, is available in the records of the Revenue. These are indeed sorry state of affairs. Time and again this Court has held that once a show cause notice is issued .....

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and assessment at which the Assessee has a right to object and to be heard on the objections raised. Before these objections are considered and dealt with there is no question of any confirmation of the demand or recovery and these are settled principles. In the instant case, the issuance of the show cause notice is not disputed. We have read the affidavit in reply as a whole and since the office records do not indicate anything of the aforesaid nature, we are unable to agree with Mr. Kantharia .....

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