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TMI Blog2008 (2) TMI 418X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution of India being W.P. No. 676 of 2007 challenging the action of the Customs Authorities for not permitting the release of the goods on provisional assessment. This writ petition was disposed of by an order passed on 21st June 2007 with the following direction: "I am of the view that since there is a provision under the Customs Act 1962 for provisional assessment of duty under Section 18, in the event, petitioner satisfies the Customs authorities for exercise of power under Section 18 for the purpose of provisional assessment of duty, the Customs authorities shall adjudicate the matter and decide the same in accordance with law. Provisional assessment shall be paid provided the Customs authorities are satisfied that sufficient case has been made out for exercise of power under Section 18. However, this exercise may be completed within a period of four weeks from the date of communication of this order to the Customs authorities. I make it clear that I have not many observations as regards the merits of the petitioner's claim and it shall be open to the Customs authorities to assess the strength of petitioner's case on its own merits in accordance with law. And the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms authorities is on availability of an alternative forum for challenging the impugned order, there being provision for filing of appeal before the Commissioner (Appeals). It is also the case of the Customs authorities that the designated authority is vested with discretion under the statute to make provisional assessment, and the petitioner has no vested right to compel the authority to exercise such discretion in his favour. The case of the Customs authorities on facts, as made out in the affidavit-in-opposition is that on information received by them that the petitioner had been indulging in under invoicing arid thereby making misdeclaration of quantity and value of the goods the consignment was intercepted at the point of clearance from the dock. It was then excess quantum of goods was found to have been imported, beyond that what was declared. However, when asked to explain, the importer had admitted the mistake and produced a second set of documents being a new packing list which was not disclosed by the importer before the Special Investigation Branch Officer. This is the case of the respondent authorities on fact. 6. As recorded in the order, a search was conducted at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dentical supplier earlier declaring four times higher value than what was declared in the consignment which is the subject of the present proceeding. Upon detection of the discrepancies, six summons were issued under Section 108 of the Customs Act, but the importer chose not to respond to the same, and the investigation could not be completed. Learned counsel for the Customs authorities has also brought to my notice that by an order under Section 110-I of the Customs Act, 1962 passed on 14th August 2007, the Manager of Balmer Lawrie, Container Freight Station (where the goods are lying now) have been directed not to remove, part with or otherwise deal with the goods except without the prior permission of the Examiner, Special Investigation Branch, as he has reason to believe that the goods are liable for confiscation. 9. No affidavit has been filed by the writ petitioner in response to the affidavit-in-opposition filed on behalf of the respondents. The prayers made in the writ petition do not include prayer for quashing or cancellation of the order passed on 3rd August 2007, though in the writ petition there are pleadings to the effect that the impugned order ought to be set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 46 in the instant case was not applicable as the declaration given by the petitioner could not be said to have been a false declaration. He relied on the decision of the Hon'ble High Court of Madras in the case of Manickam Enterprises (supra), and in particular referred to the following observations of the Hon'ble Court:- "When a statute provides for provisional assessment, the same has to be done in the manner provided in the Act and not according to the whims and fancies of the Department. As per Section 18 of the Customs Act, which provides for pending the production of such documents furnishing of such information or completion of such test enquiry, the goods be assessed provisionally if the exporter or importer, as the case may be, furnishes such security as the proper officer deems fit for the payment of the deficiency, if any." 12. I have considered the rival submissions. The direction of this Court as contained in the order passed on 21st June 2007, was that in the event the petitioner satisfied the Customs authorities for exercise of their jurisdiction or power under Section 18 for the purpose of provisional assessment of duty, the Customs authorities should ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /or full information. From the facts of the present case, as pleaded in the affidavit-in-opposition, I am satisfied that there was sufficient material before the Customs authorities at the least for giving rise to a doubt as regards the complete disclosure of the documents and/or information by the petitioner. The petitioner did not present himself before the hearing officer, and the response of the father of the petitioner was rather evasive in nature. Thus, the concerned officer did not have the opportunity to clear such doubts. 16. In the instant matter, I am examining the case of the petitioner in exercise of jurisdiction under Article 226 of the Constitution of India. The scope of interference in the present case is thus restricted and the legality action of the Customs authorities can be tested on limited grounds, being breath of principles of natural justice, ex-facie violation of law and perversity in the order or action complained against. 17. There is no complain of violation of the principles of natural justice in the present case. The thrust of the petitioner's argument is that he is entitled to have the goods provisionally assessed as a matter of course. In support o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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