TMI Blog2008 (2) TMI 418X X X X Extracts X X X X X X X X Extracts X X X X ..... ietor of a firm engaged in the business of inter-alia, import and export of stamping foils. In this writ petition, the petitioner in substance challenges withholding of clearance of a consignment of stamping foils from China. The present writ petition is in fact the second round of litigation over this consignment. These goods originally reached the port of Kolkata in the first week of March, 2007 and at the time of clearance, it was revealed that there was an excess stock of 2.6 MT over and above the declared quantity. The petitioner attributes this to an error on the part of their overseas supplier and prayed for clearance of the goods on payment of full duty for the excess material. 2. Such clearance was not permitted and the petitioner made an application before this Court under Article 226 of the Constitution 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 du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o test the same in the context of the submission advanced on behalf of the petitioner that in his case, there was no option on the part of the Customs authorities but to make provisional assessment of the consignment of the petitioner. As it appears from the impugned order, summons in spite of being issued under Section 108 of the Customs Act, the petitioner did not appear before the Customs Authorities to record his statement and on the other hand the Customs Authorities received a communication from his father that the petitioner was busy in some urgent work in Gujarat and the father of the petitioner requested the Customs Authorities to take necessary action on the basis of available documents and no other document was available with him. 5. The main ground on which the instant writ petition is resisted by the Customs 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the provisions of Section 46(4) of the Act. Since the right of an importer to obtain release of goods upon making provisional assessment under Section 18 is without prejudice to the provisions of Section 46, it was observed in the order that the provision of Section 18 is not applicable in the present case. 8. The Customs authorities contested the proceeding by filing affidavit-in-opposition. In their affidavit, the order passed rejecting the petitioner's application has been annexed. Objection has been raised as regards maintainability of this writ petition on the ground of there being provision for appeal against the order passed on 3rd August 2007. It has also been pleaded in this affidavit that the petitioner (being referred therein in its firm name, M/s. Mahavir International) had imported identical goods from the identical 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.] 3. Kindly bring the above instructions to the knowledge of all concerned. 4. Hindi version will follow. Yours faithfully, (D.S Garbyal) Under Secretary to the Govt. of India " 11. Mr. Chowdhury has also relied on two authorities, being a decision of the Hon'ble Supreme Court in the case of Gyan Chand Ors. v. State of Punjab reported in 1983 (13) E.L.T. 1365 (S.C.) and a decision of the Hon'ble High Court of Madras in the case of Manickam Enterprises v. Commissioner of Customs Trichi reported in 2002 (140) E.L.T. 16 (Mad.). Relying on these authorities, Mr. Chowdhury has submitted that the authorities ought to have considered the prayer for provisional assessment on the basis of materials available with them as the petitioner had no further document which he could produce. His case is that sub-section 4 of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "(a) Where the proper officer is satisfied that an importer or exporter is unable to produce any document or furnish any information necessary for the assessment of duty on the imported goods or the export goods, as the case may be; or (b) ............. (c) Where the importer or the exporter has produced all the necessary documents and furnished full information for the assessment of duty but the proper officer deems it necessary to make further enquiry for assessing the duty;.........." 15. Both these sub-clauses contemplate conducting of some investigation or examination on the part of the Customs authorities before such authorities exercise their discretion in favour of making provisional assessment. In the present case, the concerned authority has recorded that he has reason to believe that the importer had not furnished all relevant documents and/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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2005, and the legality of this order is also not under challenge. 20. The learned counsel for the petitioners also submitted, in course of hearing that the subject goods could be directed to be released under the provisions of Section 110(1A) of the Act. But there is no pleading or prayer to that effect in the writ petition. Thus, I decline to take cognizance of such prayer made orally at the time of hearing. If such a course is open to the petitioner for obtaining release of the goods, the petitioner will have to apply before the appropriate authority for such purpose. Under these circumstances, I find no reason to interfere with the action of the customs authorities in the present writ petition. The writ petition accordingly, shall stand dismissed, without any order as to cost. 21. This order, however, shall not prevent the petitioner from preferring an appeal against the impugned order of law permits. In fact, such liberty was given to the petitioner in the order of this Court passed on 18th September 2007. If law permits, it shall also be open to the petitioner to apply for release of goods in the manner postulated under Section 110(1 A) of the Act, in the event the Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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