TMI Blog1996 (6) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... ny departure therefrom, the jurisdiction of the Writ Court can be invoked and it would then be a plain exercise of judicial power to grant relief to a person who is seeking justice against an unfair dealing or an unfair treatment or against an administrative ipse dixit. 3.The Supreme Court of New South Wales in the case of Asmond v. Public Service Board of New South Wales Anr. reported in 1985 LR (Commonwealth) 1041 after noticing the American and English Law observed that fairness is articulated in terms of inherent necessities of the proper operation of judicial process. The general duty of fairness as regards administrative action has also been accepted as a guiding principle by Meggary, J. in the case of Bates v. Lord Hailsham [1972 (1) All E.R. 1201]. 4.Having discussed the law on this score as above, a brief reference to the factual aspect, at this juncture would be appropriate. 5.The factual score depicts that the Directorate of Revenue Intelligence working on a tip-off intercepted consignments of accessories viz., CAT Convertors, Satellite T.V. Receivers, Low Noise Block Down Convertors, Feed-Horn and N-Band Antennae at the Port of Calcutta in December, 1995. Be it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion had already been passed by the Respondent No. 4 on provisional assessment, as appearing from the relevant two Bills of Entry Home Consumption, being Annexure `P-4' collectively, which does not appear to have been assailed as yet, let there be an interim order restraining the concerned respondents from giving effect to the relevant Summons dated 20-3-1996 until further orders. Let the goods in question be also released in favour of the petitioners, who are stated to have already complied with order passed by the respondent No. 4 in connection therewith, on their furnishing Bank Guarantees for a further sum of Rs. 5,00,000/- only in favour of the Respondent No. 4 within two weeks from date, which shall be renewed from time to time. The goods in question shall be released by the concerned Respondents within three days from the date of furnishing Bank Guarantee in terms of this order. 9.This order shall not, however, debar the Authorities concerned from proceeding according to law, if they are so advised. 10.A prayer for stay of the operation of the order is made by the learned Advocate for the Respondents, but the same is refused for the reasons indicated above. 11.It is thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be applicable to any requisition for attendance under this section. Every such inquiry as aforesaid shall be deemed to be a(4) judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860)." 13.Be it noted that it has been the specific case of the Appellant herein that the goods have not been properly imported to this country. The Appellant contended that preliminary enquiry revealed that the said consignment was imported without import licence since the goods are accessories for Colour Television and no import is permitted without there being a valid import licence. In any event the Appellant contended that the said items were found to be grossly under-invoiced as noted above. 14.It is on this factual backdrop that the contentions of the parties in regard to the issuance of notice under Section 108 of the Act shall have to be considered. Admittedly Section 108 can be invoked by a Customs Officer making an enquiry of smuggling of goods. In accordance with the normal rule of construction viz. when the Legislature uses a particular word and in the event of a meaning attributed to the word in the definition Section of the statute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch an importation. Be it noted that there is no proceeding directed against any person at this stage neither there is any proposal for any penal step but only an enquiry pertaining to importation of certain goods for which admittedly no import licence was produced. Having due regard to the language of Section 108 read with Section 2(39) and Section 111(f) and (m) of the Customs Act, in my view, question of taking any exception at this stage does not and cannot arise. It is now well settled that a statutory enquiry ought not to be interfered with at the threshold by the Writ Court unless if it can be reasonably established on undisputed facts that Writ Petitioner should not have been put into difficulty at all - can it be said that issuance of a notice or summons in regard to the production of certain documentary evidence would put the Petitioner in a peril or in an insurmountable difficulty or harassment in the contextual facts - the answer cannot but be in the negative. Certain consignments of goods arrived at the Port of Calcutta without any import licence. The Revenue Intelligence wants to make certain enquiry into the matter - true it is, that Customs have released the goods bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court exists for the society but that does not, however, mean and imply that Law Court should intervene on a sheer technicality. If the word `smuggling' was not penned through then and in that event by reason of the definition as provided under Section 2(39) read with Section 111 of the Act of 1962, the Revenue Intelligence could have availed of Section 108 and there cannot possibly be any doubt in regard thereto for the purpose of an enquiry in regard to importation of goods : The Court is not called upon to investigate as to the circumstances under which the word `smuggling' was penned through, but the fact remaining however, that there was such a deletion and it is on this factual backdrop, the Court shall have to address itself to the question as to whether the same would amount to the impairment of course of justice and infringement of an existing legal right of a citizen warranting interference of the Court exercising jurisdiction under Article 226 of the Constitution. In my view however, the answer cannot but be in the negative, more so by reason of the fact that deletion of the word `smuggling' cannot be said to be going to the root of the matter in order to make an enquiry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot and cannot arise. Such authorisation is specific in terms of the notification and no exception can be taken in regard thereto. 17.Turning attention on to the first limb as regards the provisional assessment of duty, be it noted, that the word `Provisional' as used by the Legislature connotes lack of finality or the final assessment is yet to be effected and having due regard to the language used by the Legislature in Section 18 read with Section 19 of the Act, question of sitting on appeal over the assessment does not and cannot arise. The assessment is only provisional which in any event lacks the element of finality. The Statute itself has conferred on to the proper officer an authority and power to make further enquiry for assessing the duty and it is this power which is sought to be exercised by the Directorate of Revenue Intelligence. Admittedly, the goods have not been finally assessed and it therefore cannot thus be said that the Revenue Intelligence was acting beyond the scope of the Statute. The effort on the part of the Revenue Authority is to see that proper duty is paid on account of importation in question and with that end in view the Revenue Intelligence wanted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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