TMI Blog2020 (10) TMI 1142X X X X Extracts X X X X X X X X Extracts X X X X ..... and ought to have sought the leave of the Court for issuance of the order-in-original. Even a bare perusal of the file which has been produced before the Court clearly shows that the order-in-original was signed on 24th September, 2020. It is only the date on which the order is signed, is the date on which the order is passed. Revenue authority cannot at their own whim and fancy, split an order viz. first pass the operative part of the order without any discussion or finding or reasons and then pass the speaking order with discussion and findings and conveniently choose dates such as in this case. If this Writ Petition had not been filed and if this Court had not passed the order dated 06th October 2020, requiring the Officer to clear the confusion of the dates, neither this Court nor the Petitioner would have ever known the manner in which the Revenue- Authority pass orders. We are left with no choice but to set aside the order in original dated 4th September, 2020 signed on 24th September, 2020 and issued on 24th September, 2020 in toto. Also in view of the above discussion, we direct the Respondent No.2 to depute another Officer in place and instead of the present Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and petrochemicals and offers vide range of plastic products in India manufactured at its various plants. It is the case of the Petitioner that it has imported various inputs required for its manufacturing units. In respect of one such import of PVC resin suspension grade under CTH 39041020 imported from USA, the Petitioner filed Bill of Entry No. 8389492 dated 6th August, 2020 for home consumption by making self-declaration of the value. However, according to the Petitioner, the Respondent-Authorities have raised frivolous queries noting that unit price for the imported cargo in the commercial invoices is lower than the rates found in the website of S P Global Platts and that on such untenable grounds, the goods of the Petitioner were withheld at Nhava Sheva Port, Mumbai. 4. The Petitioner is aggrieved by the expiry of free time allowed by the shipping line and container freight station for clearance of imported cargo attracting huge penal charges in the form of container detention charges, ground rent etc. due to the alleged failure of the Respondent-Authorities to clear for home consumption the goods imported by the Petitioner under Bill of Entry No.8389492 dated 06th Augus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of ₹ 80,000/- under Section 112 (a) of the Customs Act. By the said affidavit, it was also stated that the bill of entry has been finally assessed on 9th September, 2020 after query reply given by the Petitioner on 9th September, 2020. Interestingly, a copy of the order of the adjudicating authority was not annexed to the reply. 10. Thereafter, when the matter was taken up on 25th September, 2020, as there was no Court working on 24th September, 2020 on account of heavy rains and flood, the following order was passed by this Court.; Mr. Jetly, learned Sr. Counsel appearing for the Respondents submits that he has filed affidavit in reply. [2] However, the said affidavit in reply is not on record. Learned Counsel for the Petitioner submits that he has also not received a copy of the same. [3] Registry to place the affidavit in reply on record. Mr. J. B. Mishra, shall ensure that copy of the said affidavit is served on learned Counsel for the Petitioner. [4] Considering the urgency expressed by learned Counsel for the Petitioner, we will take up this matter on 29th September, 2020 under the caption high on board . [5] Stand over to 29th September, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicating authority had signed the order on 24.09.2020, which prima facie means that the order was passed on 24.09.2020. However, in paragraph 6 of the affidavit in reply filed by the Commissioner, it is mentioned that the bill of entry was finally assessed on 09.09.2020 after query reply was given by the Petitioner on 09.09.2020. This means that the assessment was after 04.09.2020 i.e. on 09.09.2020. If that be so then the order in original could not have been passed on 04.09.2020. [5] From the above it appears that there is some confusion as to the exact date of passing of the order and issuance of the order. We feel that this needs to be clarified by the adjudicating authority by filing an affidavit. Besides, Mr. Pradeep Jetly shall also produce the record pertaining to passing of the order in original physically before us. Let the affidavit and record be produced by the next date. [6] Stand over to 13.10.2020. [7] In the meanwhile Petitioner may amend the Writ Petition if so advised. 14. Pursuant to our order dated 6th October, 2020, the adjudicating authority Mr. Kamlesh Kumar Gupta, Addl. Commissioner, has filed an affidavit and also the original record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20 and issued on 24.09.2020 itself under DIN No.20200978NW00002059EI. 18. The statement made in the aforementioned paragraphs quite surprises us to say the least. To say that on 4th September, 2020, the operative part of the order was recorded and that the reasons/ discussion and findings would come later is to put the cart in front of the horse rather than behind it. We are unable to comprehend as to how without dealing with the facts and without giving reasons, the operative part of a quasi judicial order can be arrived at or even recorded. According to us, this kind of approach by a quasi judicial authority is not only shocking but also against the basic tenets of conduct by quasi judicial authorities. 19. Further more, it is stated in paragraph 9 of the said affidavit of Mr. Gupta that the adjudication was done on 4th September, 2020 and the Petitioners were informed of the said adjudication on 8th September, 2020. The said paragraph is also reproduced as under:- 9:- I say that the fact of the adjudication done on 04-09-2020 was informed to the Petitioners vide letter dated 08-09-2020 issued by the Deputy Commissioner of Customs Group II G, a copy whereof is hereto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , save as otherwise provided in section 85, sell-assess the duty, if any, leviable on such goods. (2) The proper officer may verify the entries made under section 46 or section 50 and the self-assessment of goods referred to in subsection (1) and for this purpose, examine or test any imported goods or export goods or such part thereof as may be necessary. [Provided that the selection of cases for verification shall primarily be on the basis of risk evaluation through appropriate selection criteria.] 3 For the purposes of verification under sub-section (2), the proper officer may require the importer, exporter or any other person to produce any document or information, whereby the duty leviable on the imported goods or export goods, as the case may be, can be ascertained and thereupon, the importer, exporter or such other person shall produce such document or furnish such information. (4) Where it is found on verification, examination or testing of the goods or otherwise that the self-assessment is not done correctly, the proper officer may, without prejudice to any other action which may be taken under this Act, re-assess the duty leviable on such goods. (5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king order with discussion and findings and conveniently choose dates such as in this case, where the operative part of the order is claimed to have been passed without discussion or findings or reasons on 4th September, 2020 whereas the order with discussion and findings in respect of the same operative order was passed / signed on 24th September, 2020 and the same was also issued on 24th September, 2020. In fact, in said order-in-original there are also two dates mentioned on the top right hand corner of the first page i.e. the date of order - 4th September, 2020, the date of issue -24th September, 2020 and on the last page under the signature of the officer the date is 24th September 2020. It is due to this confusion that we had passed our order dated 06th October 2020 reproduced above requesting for an affidavit of the adjudicating authority and production of the original record. It is only in the affidavit of Mr. Gupta that an explanation has been given that there is also a date of signing. According to us, this type of conduct is not acceptable in conducting the affairs of the Revenue. If this Writ Petition had not been filed and if this Court had not passed the order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an exporter has an inalienable right to know the reasons for loading of value, change of classification, any decision regarding entitlement to an exemption notification etc. Omission to issue speaking orders in matters of re-assessment, may not prejudicially affect the right of the importer or exporter to appeal as such, but nevertheless deprives him of knowing the grounds of such re-assessment. At the same time, any such re-assessment without the support of a speaking order could be perceived as legally questionable. Time and again, courts have frowned upon the instances of non-issuance of speaking orders under the said subsection. 3. In view of the above, all Chief Commissioners are requested to take stock of the prevailing practice in their zones so as to ensure compliance with the provisions of the Act. 29. There are several judgments of the Apex Court that give guidance on the manner in which Revenue Authorities have to pass orders. 30. The decision of the Supreme Court in the case of State of Punjab v/s. Bandip Singh and others reported in (2016) 1 SCC 724 is relevant. It has been held by the Supreme Court that every decision of an administrative or executive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. (i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants faith in the justice delivery system. (n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Stasbourg Jurisprudence. See Ruiz torija v. Spain (1994) 19 EHRR 553, at 562 para 29 and Anya v. University of Oxford 2001 EWCA Civ 405 (CA), wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, adequate and intelligent reasons must be given for judicial decisions . 32. In view of the above discussion and the circumstances of the case, we are left with no choice but to set aside the order in original dated 4th September, 2020 signed on 24th September, 2020 and issued on 24th September, 2020 in toto. Also in view of the above discussion, we direct the Respondent No.2 to depu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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