TMI Blog2005 (7) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... he National Metallurgical Agency, which is a Government Agency. It is alleged that the writ petitions are premature, as they have been filed at a show cause notice stage. It may be mentioned that the National Metallurgical Laboratory is a neutral body and we see no reason why its report should be biased against the appellant. We cannot understand the apprehension of the appellant in this connection. At any event, the department has stated that it is prepared to give an opportunity to the appellant to cross-examine the chemical examiner of the National Metallurgical Laboratory who tested the samples. We cannot understand what more the appellant want. It seems that the appellant only wants to protract and delay the adjudication proceedings. In our opinion, the appellant can cross-examine the chemical examiner of the National Metallurgical Laboratory in connection with these two objections, but he cannot claim any right to draw samples from the detained goods, since there is no provision in law permitting taking of such samples. As regards the appellant's prayer for a direction to the first respondent to make a provisional assessment u/s 18 of the Customs Act while releasing the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant is a manufacturing unit engaged in the manufacture of iron and steel products at Chennai. For the use in the said unit the appellant imported non-alloy steel of 431.700 MT which was cleared under Bill of Entry No. 692343 dated 1-10-2004 with a duty concession under Notification No. 24/2004, dated 1-3-2002. However, when another consignment was imported against Bill of Entry No. 695193, dated 7-10-2004, and Bills of Entry Nos. 702063 and 702064, dated 20-10-2004 with a concessional duty relief under the aforesaid Notification No. 24 /2002, dated 2-3-2002 the goods were detained by the Customs Department. 4. There is a controversy between the appellant and the department as to whether the imported goods are eligible for concessional duty or not. It may be mentioned that seconds and defective goods are ineligible for the concessional duty, vide Government of India Customs Notification No. 21/02, dated 1-3-2002 as amended. 5. According to the appellant the imported goods were not seconds or defective goods whereas according to the department they were such goods. 6. When the goods were seized by the Customs Department a Mahazar was drawn on 13-10-2004 in which there was a refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Intelligence, the goods of 485.11 MTS have been released provisionally detaining 325 MTS goods as security to safe guard the differential duty amount and adjudication liabilities as per the request of the petitioner. The differential duty comes approximately to Rs. 50 lakhs. 10. It is alleged by the department that this is a case of blatant mis-declaration of description of the goods with a view to evade huge amount of duty at higher rate. A show cause notice has been issued proposing to take action under Section 111(m) and 112 (a) of the Customs Act, 1962 in connection with the above imports and the appellant has to face the adjudication proceedings. It is alleged that the request for the re-test by a different agency is not permissible. It is further alleged that there is no provision entitling the appellant to get samples of the detained goods. It is further alleged that both the department as well as the trade are accepting the opinion furnished by the National Metallurgical Agency, which is a Government Agency. It is alleged that the writ petitions are premature, as they have been filed at a show cause notice stage. 11. In paragraph - 8 of the counter affidavit filed by the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was only based on visual inspection. 16. In our opinion, the appellant can cross-examine the chemical examiner of the National Metallurgical Laboratory in connection with these two objections, but he cannot claim any right to draw samples from the detained goods, since there is no provision in law permitting taking of such samples. 17. The learned counsel for the appellant relied on the decision of the Supreme Court in Commissioner of Customs, New Delhi v. Punjab Stainless Steel Industries, 2001 (132) E.L.T. 10 in support of his contention that the petitioner has a right to take samples. We have carefully perused the said decision. In paragraph - 5 of the said decision the Supreme Court has observed :- The demand of the respondent for retesting of samples was declined but in order to obviate any unfair treatment to the respondent, the Commissioner gave option to the respondent to cross-examine the Chemical Examiner who had tested the samples. The respondent, however, did not avail that option and declined to cross-examine the Chemical Examiner. Regarding the objection of the respondent that copies of shipping bills were not supplied, the Commissioner observed that so long as the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 130 of the Act and further if aggrieved from the order made on reference, it could approach this Court by filing a petition under Article 136 for grant of leave. Learned Attorney General, without going into the question of maintainability, submits that the present appeal may be treated as a special leave petition and in support placed reliance upon Commissioner of Central Excise and Customs v. Venus Castings (P) Ltd. [2000 (117) E.L.T. 273 (S.C.) = 2000 (4) SCC 206] where rejecting the similar objection about the maintainability of the appeals under the Central Excise Act, the appeals were directed to be converted into special leave petitions and dealt with on merits. In the circumstances of this case, and also considering that this matter has been pending in this Court for nearly two years, we convert this appeal into special leave petition, grant leave and proceed to decide the appeal on merits. The order of the Commissioner of Customs has been set aside by the Tribunal holding that there was violation of principles of natural justice on account of two reasons, namely, (1) Rejection of the request of the respondent for retesting the samples on the ground that there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , rather paragraph - 5 negatives the claim of the appellant. It has been stated in paragraph - 5 of the said decision that the assessee can cross-examine the chemical examiner if it is aggrieved against his findings. There is nothing in paragraph - 5 which states that the petitioner has a right to take samples. The Supreme Court has clearly negatived the allegation that there is violation of principles of natural justice in such a situation. In the present case also the department has stated that it is willing to give the appellant an opportunity to cross-examine the chemical engineer. Hence, there is no question of violation of principles of natural justice in the present case. 19. The learned counsel for the appellant then relied on the decision of the Supreme Court in Bombay Oil Industries Pvt. Ltd. v. Union of India, 1995 (77) E.L.T. 32 in which it has been observed in paragraph 9 :- If the appellants felt that the findings of the Customs House were not correct it was open to them to get the samples cross tested through their experts and to lay evidence in that connection before the authorities as the burden was entirely on them to show that they satisfied all the conditions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Norton [1951 AC 737 at page 761], Lord Mac Dermot observed : 'The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J. as though they were part of an Act of parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge'. In Home Office v. Dorset Yacht Co. [1970 (2) All ER 294] Lord Reid said, 'Lord Atkin's speech ? Is not to be treated as if it was a statute definition it will require qualification in new circumstances'. Megarry, J. in (1971) 1 WLR 1062 observed: 'One must not, of course, construe even a reserved judgment of Russell L.J. as if it were an Act of Parliament'. And, in Herrington v. British Railways Board [1972 (2) WLR 537] Lord Morris said : 'There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case'. 24. In view of the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
