2008 (2) TMI 418 - HC - Customs

Provisional Assessment powers and rights The case of the petitioner in this writ petition, which is sought to be made out by Mr. Chowdhury is that the provisional assessment can be claimed as a matter of right - held that no attempt has been made by the petitioner to satisfy the Customs Authorities as regards subsistence of a case for exercise of their power under Section 18 of the Act - Sufficient opportunity was given to the petitioner - . There is no complain of violation of the principles of natural justice in the present case. - conditions stipulated in Section 18(1) of the Act would have to be satisfied before the Customs authorities decide to make provisional assessment in terms of the aforesaid provision. A notification issued under the statute in any event cannot override the provisions of the Act - The writ petition dismissed.

Issues Involved:
1. Withholding of clearance of a consignment of stamping foils.
2. Provisional assessment of duty under Section 18 of the Customs Act, 1962.
3. Availability of an alternative forum for challenging the impugned order.
4. Compliance with Section 46(4) of the Customs Act.
5. Examination of the Customs authorities' discretion in making provisional assessments.
6. Application of the Circular dated 3rd March 2004 and relevant case laws.

Issue-wise Detailed Analysis:

1. Withholding of Clearance of a Consignment of Stamping Foils:
The petitioner, a sole proprietor engaged in import and export, challenged the withholding of clearance of a consignment of stamping foils from China. The goods reached Kolkata in March 2007, and an excess stock of 2.6 MT over the declared quantity was found. The petitioner attributed this to an error by the overseas supplier and sought clearance upon payment of full duty for the excess material. Clearance was not permitted, leading to the first writ petition (W.P. No. 676 of 2007), which directed Customs authorities to adjudicate the matter under Section 18 of the Customs Act.

2. Provisional Assessment of Duty Under Section 18 of the Customs Act, 1962:
The Customs authorities rejected the petitioner's request for provisional assessment and clearance on 3rd August 2007. The petitioner filed another writ petition on 21st August 2007, seeking a direction for provisional assessment. The court examined the order, noting that the petitioner failed to appear before the Customs authorities and did not provide necessary documents, leading to the rejection of provisional assessment.

3. Availability of an Alternative Forum for Challenging the Impugned Order:
The Customs authorities argued that the petitioner had an alternative remedy by filing an appeal before the Commissioner (Appeals). The court noted that the petitioner did not challenge the order dated 3rd August 2007, which was annexed in the affidavit-in-opposition.

4. Compliance with Section 46(4) of the Customs Act:
The Customs authorities found discrepancies in the importer's declarations, including possession of two different packing lists for the same consignment. The non-disclosure of this fact at the time of filing the bill of entry constituted a violation of Section 46(4) of the Customs Act. The court observed that the right to provisional assessment under Section 18 is without prejudice to Section 46, and thus, Section 18 was not applicable in this case.

5. Examination of the Customs Authorities' Discretion in Making Provisional Assessments:
The court held that the Customs authorities have discretion under Section 18(1) of the Act to make provisional assessments based on specific conditions. The petitioner did not satisfy these conditions, as he failed to provide full information and did not cooperate with the authorities. The court found no ex-facie illegality or perversity in the Customs authorities' decision.

6. Application of the Circular Dated 3rd March 2004 and Relevant Case Laws:
The petitioner relied on a Circular dated 3rd March 2004 and case laws, including Gyan Chand & Ors. v. State of Punjab and Manickam Enterprises v. Commissioner of Customs Trichi. The court noted that the circular and case laws did not support the petitioner's claim for provisional assessment as a matter of right. The court emphasized that the conditions under Section 18(1) must be satisfied, and the circular could not override the statutory provisions.

Conclusion:
The court dismissed the writ petition, stating that the Customs authorities' decision was neither illegal nor perverse. The petitioner was advised to pursue an appeal against the order dated 3rd August 2007 or apply for release of goods under Section 110(1A) of the Act if applicable. The court's order did not prevent the petitioner from seeking these alternative remedies.

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