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2016 (7) TMI 795 - CALCUTTA HIGH COURT

2016 (7) TMI 795 - CALCUTTA HIGH COURT - 2016 (337) E.L.T. 371 (Cal.) - Maintainability of writ petition - writ petitioner had mis-described the goods and also had them under valued. - Held that:- Since the respondents did not use any affidavit either before the Trial Court or before this Court nor did Mr.Saraf dispute the correctness of the contents of the Office Notes appearing at pages 63 and 64 the contents of the Office Notes dated 6th June, 2013 and 14th June, 2013 appearing at pages 63 an .....

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, Adv. And Mr.K. K.Maiti, Adv., for the respondents. ORDER The Court : The subject matter of challenge in the appeal is an order dated 1st October, 2015 by which the writ petition was summarily dismissed. The facts and circumstances of the case, briefly stated, are as follows: The writ petitioner an importer lodged a Bill of Entry dated 30th April, 2013 describing the goods imported as general purpose machinery oil belonging to tariff heading 27101980 @ US$ 450 per MT. On the aforesaid basis the .....

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ancement of Unit price from USD 500 to USD 1000 per MT. As the cargo is incurring several demurrage and detention we pray for immediate release of our B/E. We do not desire any SCN/AO/PH. A summon was thereafter issued to the writ petitioner under Section 108 of the Customs Act, 1962 on 7th May, 2013. No copy of the summons has been disclosed by the writ petitioner nor did the writ petitioner in fact disclose the letter dated 6th May, 2013 indicated above. In reply to the summon dated 7th May, 2 .....

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act that the goods have been misdeclared and agree for any decision taken as per law. They also admitted that they had committed an offence and prayed for condonation thereof. They also prayed for early release of the goods considering that they are liable to recurring demurrage and detention charges. There is as such, no manner of doubt that the writ petitioner himself admitted the offence. He agreed to enhancement of value. He admitted the fact that he has mis-declared the goods. He also agree .....

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scated the goods with an option to the writ petitioner to redeem the same subject to payment of fine of ₹ 17 lakhs. Penalty of ₹ 8,50,000/- was also imposed under Section 112 of the Customs Act, 1962. The office note dated 14th June, 2013 appearing at page 64 of the Stay Petition goes to show that the goods imported by the writ petitioner were SAE - 40 Grade Engine Oil and not General Purpose Machinery Oil [Medium Grade] as declared in the Bills of Entry. It is not in dispute that th .....

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8th June, 2013. This payment is, however, relatable to only one of the two bill of entries lodged on 30th April, 2013. We already have indicated that the other bill of entry has not been disclosed. In the aforesaid background of admitted facts, the case made out by the writ petitioner is as follows:- a) the writ petitioner gave up his right to raise objection at the instance of customs officials; b) that the petitioner was not liable to make payment; c) that he is entitled to refund, and d) that .....

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s right made out by the writ petitioner is altogether false. The right to prefer an appeal is doubtful because the orders were passed by the authorities pursuant to the request made by the writ petitioner itself. We should not, however, be deemed to have expressed any final opinion in that regard because the appeal, if any, is to be filed before the Tribunal and not before us. Whether the writ petitioner is entitled to refund is also a matter, which is not the subject matter of this writ petitio .....

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of a right in favour of the writ petitioner created by Statute, which correspondingly creates obligation on the part of the Statutory Authority or the State within the meaning of Article 12 of the Constitution of India. Reference in this regard may be made to the judgment in the case of Ayaaubkhan Noorkhan Pathan Vs. State of Maharashtra And Others reported in (2013) 4 SCC 465 which reads as follows:- A writ petition under Article 226 of the Constitution is maintainable either for the purpose of .....

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ued under this Act, shall be served,- (a) by tendering the order, decision, summons or notice or sending it by [registered post or by such courier as may be approved by the Commissioner of Customs]; (b) if the order, decision, summons of notice cannot be served in the manner provided in clause (a), by affixing it on the notice board of the customs house. No other statutory right was relied upon by the writ petitioner. Section 153, according to us, lays down the procedure as regards service of an .....

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d, fine and penalty levied upon him. The writ petitioner thereafter paid the amount on 27th June, 2013 itself and had the goods released. The fact that he promptly made the payment without any let or demur is ample evidence of the fact that the orders of adjudication including the order directing payment of fine, penalty etc. were accepted by him. He is now estopped from contending otherwise. It may also be contended that the writ petitioner waived its right if any under section 153 of the Custo .....

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