TMI Blog2018 (3) TMI 1506X X X X Extracts X X X X X X X X Extracts X X X X ..... an Order-in-Original, particularly, after the period of nearly 18 years from the date of filing of the Bill of Entry and 12 ½ years from the date of the assessment, as contemplated by Sub-sections (1) and (2) of Section 18. Throughout the petitioner has been demanding and issuance of the show-cause notice and furnishing a copy thereof to him. That requirement in law being not fulfilled, we do not think that we should relegate the petitioner to any alternate remedy to challenge the impugned order. The impugned order is ex-facie illegal and without jurisdiction - petition allowed - decided in favor of petitioner. - Writ Petiton (L) No .460 of 2018 - - - Dated:- 19-3-2018 - S.C. DHARMADHIKARI AND PRAKASH D. NAIK, JJ. Mr. R.V. Desai, Senior Counsel a/w. Mr. R.B. Pardesi, Nagin S. Patel, Mr. Nagendra Singha i/b. M/s. KRP Legal, Advocate for the Petitioner. Mr. Pradeep S. Jetly, Advocate for the Respondents. P.C. : Rule. 2. Rule made returnable forthwith. 3. Respondent waives service. 4. By this petition, under Article 226 of the Constitution of India, the petitioner challenges an order dated 5th January, 2018, passed by the Assistant Commissioner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2000 and 9th March, 2001, but, accepted the said orders. 11. The petitioner approached the authorities by pointing out that a provisional release order was made in this case, but, nothing further has been done nor the file closed. The petitioner be intimated the final outcome of this action. 12. The allegations of the petitioner are that, after 18 years from import and provisional assessment order, the Assistant Commissioner, Customs, issued a letter, in which it is stated that the petitioner should attend the personal hearing for finalizing the subject Bill of Entry. 13. However, in reply to this letter, the petitioner pointed out that before such finalization, the Department will have to issue a show-cause notice. Let that show-cause notice be issued and, then, the petitioner would submit to the jurisdiction of the authority. Since the petitioner was repeatedly called by issuance of E-mails, eventually, the petitioner attended the proceedings. 14. It is in pursuance of his attendance for a personal hearing, that the impugned order has been passed and the operative part of the same appearing at page no.62 of the paper book reads as under: 15 In view of the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities. Thus, the Order-in-Original can be challenged both on facts and law. In the light of such an alternate equally efficacious remedy, we should not entertain the petition. 17. Alternatively and without prejudice, Mr.Jetly would submit that in this case, the governing provision would be Section 18, as it was on the statute book at the relevant time. If, the provision opens with a non-obstante clause, and if the importer, who is unable to make a self assessment under Sub-section (1) of 17, makes a request in writing to the proper officer for assessment, or in terms of the Clauses (b), (c) and (d), then, the proper officer may direct that the duty leviable on such goods be assessed provisionally. If the importers or exporters, as the case may be, furnish such security to the proper officer, as he may be deem fit, for the payment of deficiency, if any, as may be finally assessed or reassessed, as the case may be, he can assess the provisional duty. According to Mr. Jetly, Sub-section (2) enables adjustment and to be made at the final assessment. He would submit that in this case Section 28, though mentioned in the impugned order, is not the source of the power or the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the endorsements in the file and equally in the impugned order. Section 28, as appearing at the relevant time, and as also today, enables recovery of duties, which have not been levied or have been short levied or erroneously refunded or any interest payable has not been paid, part-paid or erroneously refunded, for any reason other than the reasons of collusion, or any willful mis-statement or suppression of facts, then, the proper officer may, in case of any import made by any individual for his personal use or by the Government or by any educational, research or charitable institution or hospital, within one year, and, in any other case, within six months from the relevant date, serve the notice on the person chargeable with the duty or interest, requiring him to show cause as to why he should not pay the amount specified in the notice. The proviso enables invocation of extended period of five years in the circumstances set out herein. 20. It is this very provision which has been expressly referred in paragraph 13 of the impugned order, but, without the preceding requirement for its applicability being satisfied. In other words, the Order-in-Original was not preceded by a sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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