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2016 (10) TMI 377 - BOMBAY HIGH COURT

2016 (10) TMI 377 - BOMBAY HIGH COURT - TMI - Finality of assessments violating the principles of natural justice - opportunity of being heard - provisional assessment of bills of entry u/s 18 of the Customs Act, 1962 for want of test reports - samples drawn and sent for testing - test reports not communicated and final assessment made - whether the final assessment made without communicating the test report to petitioner and without affording the opportunity of personal hearing was justified? - .....

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he principles of natural justice. Once the Revenue concedes the position, that they have issued a Show Cause Notice, called for certain documents and equally taken on record a written explanation and reply to the charges or allegations in the Show Cause Notice, then, it was incumbent upon it have given a complete opportunity to a party like the petitioner of making oral submissions by relying on the record. This was possible only at a personal hearing - final assessment made not sustainable - op .....

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Pradeep S. Jetly and Ms Anamika Malhotra for the Respondents JUDGMENT ( Per Shri S. C. Dharmadhikari, J. ) 1. Rule. The respondents waive service. By consent of the parties, rule made returnable forthwith and heard finally. 2. This writ petition challenges an order passed on 2-5-2011 by the Customs (Preventive), Alibaug Division. 2A. Very few facts are required to be noted for appreciating the submissions of the learned Senior Counsel appearing for the petitioners that the impugned assessments .....

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ondent No.4 assessed the bills of entry provisionally in terms of Section 18 of the Customs Act, 1962 for want of test reports. Accordingly, samples were drawn from the imports made and the same were sent for testing. The petitioners' case is that the outcome of the test has not been communicated to them till date. Thereafter, they were served with Show Cause Notice dated 22-2-2010 proposing to finalise assessments by including certain costs incurred after importation of the goods, on the gr .....

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finalised the matter and they are required to pay the differential duty. The communication in that behalf and impugned in this petition (at page 54) reads as under: OFFICE OF THE ASSISTANT COMMISSIONER OF CUSTOMS (PREVENTIVE), m7p WING, ALIBAG DIVISION, KOLIWADA, ALIBAG, DIST. RAIGAD, MAHARASHTRA, PIN-402 201. F.No.VIII/1101/ ABGCUS/ FA/PNP/Gr'B'/10/224 Dharamtr, the dt. 02/05/11 To, M/s. Deepak Fertilizers & Petro Chemicals Corpn. Ltd., Opp. Golf Course, Shastri Nagar, Yerwada, Pun .....

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ls of Entry for the year 200708 in respect of PNP port, Dharmtar, Alibag Division under F.No.SD/INT/ADMN/35/08/RI, dtd. 13.12.2010. An annexure showing the details of Bills of Entry pertaining to you, which have been finalized by him is enclosed herewith. Besides, the attested copies of bills of entry are also enclosed. You are requested to pay duty short paid amounting to ₹ 7677173/, within 15 days of receipt of this let. You are also requested to pay interest on the duty short paid as sh .....

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India, reported in 2014 (307) E.L.T. 874 (Bom.). It is submitted that even in the case of ISMT Ltd. Vs. The Union of India and Others {Writ Petition No.6010 of 2011}, decided on 1-8-2011, this Court deprecated the tendency of the respondents in finalising the provisional assessment of certain bills of entry under a special drive. The impugned communications in those matters and which are identical to the present case were set aside. 6. The Senior Counsel urges that therefore this writ petition b .....

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tter dated 1832010 to furnish all the documents. It is true that reply was filed to the Show Cause Notice on 1942010 denying all the allegations. The finalisation of the provisional assessment was undertaken and that was completed. Upon its completion, the petitioners were duly informed that the finally assessed bills of entry are orders of assessment and, therefore, appealable. The appeal ought to have been filed within the period of limitation prescribed by law and which commences from the dat .....

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which is referring to a special drive. That drive was undertaken for finalisation of bills of entry which were assessed provisionally. Since for a long period of time they were kept pending and without assessment, a drive was initiated to clear those assessments and the files in relation thereto. 9. What we have found from a perusal of the Judgments relied upon by Mr. Sridharan is that this very fact was before this Court in all the three matters in which the Judgments were delivered. It may be .....

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natural justice. Once the Revenue concedes the position, that they have issued a Show Cause Notice, called for certain documents and equally taken on record a written explanation and reply to the charges or allegations in the Show Cause Notice, then, it was incumbent upon it have given a complete opportunity to a party like the petitioner of making oral submissions by relying on the record. This was possible only at a personal hearing. Thereafter, the Adjudicating Officer should have dealt with .....

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any discussion on how the demand or the allegations in the Show Cause Notice have been upheld. It is not as if the petitioners are not called upon to pay any sums, for what they are called upon to pay is duty short paid, meaning thereby the duty paid by the petitioners was found to be deficient and not discharged in full. It is in these circumstances when amounts with interest are to be tendered, then, the least that is expected is that such demand for money is based on a proper, reasoned order .....

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