2006 (4) TMI 46 - HC - Customs

Demand Alleged that appellant used to show misdecleraton and undervaluation of the imported goods and accordingly authority demanded for differential duty alongwith interest After considering all the details allow the writ petition and set aside the order

Issues:
Challenge to order-in-original dated 28th December 2005 passed by the Commissioner of Customs (Import) under the Customs Act, 1962. Invocation of extraordinary jurisdiction under Article 226 of the Constitution of India despite the availability of statutory remedy of appeal under Section 129 of the Customs Act, 1962. Allegations of misdeclaration and undervaluation of imported goods. Lack of opportunity for the petitioner to respond adequately to the show-cause notice. Non-receipt of show-cause notice dated 1st November 2004 by the petitioner. Failure to provide relied upon documents along with the show-cause notice. Delay in supplying relied upon documents and non-return of unrelied documents. Request for postponing personal hearing and insufficient time granted for response. Interpretation of circular dated 13th June 1988 regarding the return of seized documents. Partial deposit of the demanded amount by the petitioner.

Detailed Analysis:

1. Challenge to Order-in-Original:
The petitioner challenged the order-in-original dated 28th December 2005 passed by the Commissioner of Customs (Import), which confirmed a demand of differential duty, interest, and imposed penalties. The order also involved confiscation of goods with an option for redemption on payment of a fine.

2. Invocation of Extraordinary Jurisdiction:
Despite the availability of the statutory remedy of appeal under Section 129 of the Customs Act, 1962, the court decided to invoke extraordinary jurisdiction under Article 226 of the Constitution of India due to the circumstances of the case.

3. Allegations of Misdeclaration and Undervaluation:
The petitioner was accused of misdeclaring the value of imported advanced computers from their parent company in the U.S.A., leading to misdeclaration and undervaluation of goods.

4. Lack of Opportunity to Respond Adequately:
The court noted that the petitioner was not given sufficient opportunity to respond to the show-cause notice and that their reasonable request for postponing the personal hearing was not granted without justifiable reason.

5. Non-Receipt of Show-Cause Notice:
The petitioner claimed they did not receive the show-cause notice dated 1st November 2004. The court found no specific denial in the reply and acknowledged that the petitioner only became aware of the notice in October 2005.

6. Delay and Issues with Document Submission:
There were delays and issues related to the submission of relied upon documents along with the show-cause notice, as well as the non-return of unrelied documents despite repeated requests by the petitioner.

7. Interpretation of Circular on Seized Documents:
The court referred to a circular dated 13th June 1988, emphasizing the importance of returning unrelied documents to the affected party to assist in preparing a response to the show-cause notice.

8. Partial Deposit of Demanded Amount:
It was highlighted that the petitioner had already deposited a substantial sum towards the demanded amount, indicating that the entire demand of differential duty was not outstanding against them.

In conclusion, the court allowed the writ petition, set aside the order-in-original, and directed the petitioner to file a reply to the show-cause notice within three weeks. The court emphasized the importance of providing adequate opportunity for the petitioner to respond and clarified the consequences of failing to comply with the directive.

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