9911796707
TMI Blog2018 (9) TMI 329X X X X Extracts X X X X X X X X Extracts X X X X ..... ic bags under the name 'GERBER' from Hongkong China, which is stated to be imported for the purpose of packing babies garments. According to them, the imported plastic bags, which are embossed with the name 'GERBER', are exempted from duty under Section 25(1) of the Customs Act through a Notification No.21/02/Cus, dated 01.03.2002, (hereinafter referred to as the Notification), wherein serial No.140 includes the articles imported by them. 2. The controversy in this case arose because when the petitioner imported the articles, according to them, the Customs Appraiser did not permit them the benefit of the Notification and, therefore, that they paid the applicable duty under protest, since they were in a hurry on account of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs and Central Excise appearing for respondents 1 to 3. 6. On a consideration of the submissions made before me by the learned counsel for the parties, I am drawn to a firm impression that the disputations between the parties in this case is more in the arena of factual circumstances than relating to forensic evaluations. I say this because it is now settled law by the Hon'ble Supreme Court in Escorts Limited v. Union of India [1998 (97) E.L.T.211 (S.C.)] that in the absence of an objection being raised by the importer regarding the classification and the duty, at the time when the import is effected, normally the Authorities under the Customs Act would not be enjoined to issue any order under Section 27 of the Customs Act becaus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile acting under Article 226 of the Constitution of India, in delving into or affirmatively stating on factual circumstances, I am certainly of the view that this is an issue that will require to be decided by the competent Authority at the first instance. 9. I am persuaded to this course for the added reason that in Ext.P13 there is no whisper regarding the non-receipt of Exts.P7(a) to P7(j); but the Authority merely says that they have received only complaints as regards two bills of lading and not the rest. The learned counsel for the petitioner Sri.Keerthivas adds to this by submitting that even though the petitioner had averred in paragraph 11.7 of the writ petition that Exts.P7(a) to P7(j) were handed over to the Appraiser, but not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instance. 11. In such circumstances, I order this writ petition and direct the 2nd respondent, the Deputy Commissioner of Customs (Import), to reconsider the petitioner's claim for refund under Section 27 of the Customs Act, taking into account all relevant materials that may be placed before him by the petitioner. The contention of the petitioner that he had preferred Exts.P7(a) to P7(j) before the concerned Appraiser will be an issue that will be available to the petitioner to establish by cogent materials, including by relying upon the documents in this writ petition which, they assert, indicates such receipt by the said officer. The said contentions of the respondents regarding the dates shown in those letters viz-a viz the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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