TMI Blog2021 (3) TMI 1068X X X X Extracts X X X X X X X X Extracts X X X X ..... with the grounds substantiating such finding. Further, the investigative finding by a Deputy Commissioner, or an Assistant Commissioner (SVB), in the scheme of the procedure contemplated under the Circular dated 09.02.2016, cannot be called as an institutional decision, the hallmark of which is a decision taken by a large number of people who take part in the collective decision-making process rather than one designated person. The Hon ble Supreme Court in Automotive Tyre Manufacturers Association v. Designated Authority and Others [ 2011 (1) TMI 7 - SUPREME COURT ] after an overview of the decisions on compliance with the principles of natural justice has held that principle holds good irrespective of whether the power conferred on a statutory body or Tribunal is administrative or quasi-judicial - It is further declared in this decision that it is trite that the concept of natural justice can neither be put in a strait-jacket nor is it a general rule of universal application. There can be exceptions to the said doctrine, but the question whether the principle has to be applied or not is to be considered bearing in mind the express language and the basic scheme of the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and if it is issued in violation of the principles of natural justice, what would be the appropriate order. These questions arise for consideration in the circumstances stated hereafter. 3.The petitioner, because it is importing perfumery and flavouring compounds from its group companies, registered itself with the Special Value Branch (SVB) and is allotted a unique file number in S50/45/2003-SVB. The petitioner, upon its registration as aforesaid, has submitted its reply to the questionnaires as required, and in the subsequent proceedings, the Joint Commissioner of Customs, Special Valuation Branch vide the Order dated 05.10.2004 [Annexure A] has concluded that the petitioner and its group companies, from whom the petitioner is importing perfumery and flavouring compounds, are related in terms of Rule 2(2)(iv) and (vi) of the erstwhile Customs Valuation Rules, 1988 but such relationship had not influenced the pricing pattern of the imported goods, The other entities, which are subsequently merged with the petitioner, because they are also importing perfumery and flavouring compounds from group companies based abroad, registered themselves with the concerned SVB, and even in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per Annexure-1 appended to the Circular dated 09.02.2016 in No. 5/2016. The Petitioner has filed a Writ Petition in W.P No.41837/2016 because there was no decision after the Assistant Commissioner of Custom (SVB), Bengaluru - the second respondent refused to accept the declaration filed by the petitioner in Annexure-1 and the petitioner filed further information to justify filing declaration in Annexure 1. 8.This Court in W.P No.41837/2016 by its interim order dated 27.10.2016, while directing that no EDD shall be charged from the petitioner without the specific leave of the Court, directed the second respondent to pass appropriate orders in accordance with the Circular dated 09.02.2016. After this interim order dated 27.10.2016, the second respondent by order dated 5.11.2016 rejected the declaration filed by the petitioner in Annexure-1 and directed the petitioner to follow instructions in the circular dated 09.02.2016. The petitioner unsuccessfully challenged the aforesaid order dated 05.11.2016. 9.The writ petition in WP No.41837/2016 is disposed of by this Court on 27.03.2018 directing the second respondent (who is arrayed as the 4th respondent in WP No.41837/2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enquiry/investigation, the Deputy Commissioner/Assistant Commissioner of Customs (SUB) furnishes an Investigation Report incorporating all the relevant facts, submissions made by the importer, investigative findings, grounds for acceptance or rejection of the transaction value and the extent of influence on declared transaction value, if any. This Investigation Report, which forms the basis for further decision by the adjudicating authority, is to be preceded by an inquiry which has all the strappings of a personal hearing. Therefore, this Court in W.P No.41837/2016 directed the Assistant Commissioner of Customs (SUB) to hear the petitioner and furnish Investigation Report. 12.Sri S S Naganand, the learned Senior Cousnel emphasizes that the Assistant Commissioner of Customs (SBV) in holding the inquiry and filing Investigation Report after giving a personal hearing in terms of the Circular dated 09.02.2016 in No.5/2016 is discharging quasi judicial function. There has to be fair play in holding such inquiry and the same should comply with the principles of natural justice: one of the basic aspects of the principles of natural justice is that justice should not only be done but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Commissioner of Central Excise [2015] 58 Taxmann.com 90 (SC) in support of this decision. 16.In rejoinder, Sri S S Naganand, learned Senior Counsel relying upon the decision of the Hon ble Supreme Court in Automotive Tyre Manufacturers Association v. Designated Authority and others (2011) to Supreme Court cases 258 submits that it is settled that unless statutory provisions specifically or by necessary implication exclude the application of the requirement of a reasonable opportunity, such requirement is read into the provisions of such Statute/Rule, particularly when the order as adverse civil consequences inasmuch as there would be obvious infraction of property or personal rights, or material deprivation to the party affected. Once the breach of natural justice is established, it would be appropriate, as contended before the Hon ble Supreme Court, to remand the matter for de novo adjudication from the stage the procedural irregularity as intervened. In the present case, the Circular dated 09.02.2016 in No. 5/2016 which details the procedure to be followed by the Assistant Commissioner of Customs [SVB] has provided for compliance with the principles of natural justice, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ors., AIR 1963 SC 677, which is referred to in Automotive Tyre Manufacturers Association v. Designated Authority and Others Supra has observed that: Often the line of distinction between decisions judicial and administrative is thin: but the principles for ascertaining the true character of the decisions are well-settled. A judicial decisionis not always the act of a judge or a tribunal invested with power to determine questions of law or fact: it must however be the act of a body or authority invested by law with authority to determine questions or disputes affecting the rights of citizens and under a duty to act judicially. A judicial decision always postulates the existence of a duty laid upon the authority to act judicially. Administrative authorities are often invested with authority or power to determine questions, which affect the rights of citizens. The authority may have to invite objections to the course of action proposed by him, he may be under a duty to hear the objectors, and his decision may seriously affect the rights of citizens but unless in arriving at his decision he is required to act judicially, his decision will be executive or administrative. Legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of a statute, particularly when the order has adverse civil consequences which obviously cover infraction of property, personal rights and material deprivations for the party affected. The principle holds good irrespective of whether the power conferred on a statutory body or Tribunal is administrative or quasi-judicial. 22.It is further declared in this decision that it is trite that the concept of natural justice can neither be put in a strait-jacket nor is it a general rule of universal application. There can be exceptions to the said doctrine, but the question whether the principle has to be applied or not is to be considered bearing in mind the express language and the basic scheme of the provision conferring the power; the nature of the power conferred and the purpose for which the power is conferred and the final effect of the exercise of that power. It is only upon a consideration of these matters that the question of application of the said principle can be properly determined. 23.It is also obvious from the provisions of Circular 09.02.2020 in No.5/2016, which contemplate a suitable opportunity to submit evidence in support of the declared value and an invest ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
