9911796707
TMI Blog2010 (3) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... Deputy Commissioner of Customs, Group Jawaharlal Nehru Custom House, Nhava Sheva, Post: Uran, Dist. Raigad, Maharashtra - 400 707. 4. Central Board of Excise & Customs Ministry of Finance, Department of Revenue, New Delhi. Mr. V. Sridharan with Mr.Prakash Shah i/b. PDS Legal for petitioners. Mr. P. S. Jately for respondents. CORAM: V. C.DAGA & K.K.TATED, J J. JUDGMENT (PER: V.C.DAGA, J.) Heard. Perused petition. Rule, returnable forthwith. Learned Counsel for respondents waives service. Heard finally by consent of parties. 2. This petition, filed under Article 226 of the Constitution of India is seeking a writ of mandamus directing respondents and their subordinates to allow clearance of the consignment covered by bill of entr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding clearance since more than a month incurring heavy detention and demurrage charges. The petitioners vide their letter dated 8th March, 2010 submitted to the Commissioner of Customs (Exports) again requested for assessment of the goods and allowing them to clear as per the value declared. According to the petitioners, as yet no action has been taken by the respondents to assess and clear the consignment of the petitioners. 6. The petitioners having left with no other alternative, invoked writ jurisdiction of this Court to seek declaration of invalidity of the circular dated 12th February, 2008 issued by the CBEC vide prayer clause (a) and consequent directions in terms of prayer clause (b) in the matter of clearance of consignment. RI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the second hand capital goods should be assessed as per Transaction Value i.e. price paid by the petitioners. 11. Mr.Sridharan submits that the depreciated value as per Circular dated 19th December, 1987 is not required to be considered, as the said circular is in contravention of the provisions of the Act and Rules framed thereunder. He placed reliance on the Apex Court judgment in the case of Eicher Tractors Ltd. Vs. CC 2000 (122) E.L.T. 321 (SC) and also the observations made in the case of Basant Industries 1996(81( ELT 195 (SC), wherein the Apex Court held that: "It is essential to bear in mind the fact that in the business world consideration of relationship with the customer is also a relevant factor. Thus the Supreme Court held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircular dated 12th February, 2008 is concerned, it is nothing but a compilation of principles laid down in various judicial pronouncement just to facilitate the Revenue Officers to take a proper view of the matter keeping the provisions of the Act and Rules in mind. He further submits that the apprehension entertained by the petitioners has no foundation as on date giving rise to the cause of action so as to enable the petitioner to invoke extra ordinary writ jurisdiction of this Court. He, thus, submits that this is not a fit case wherein, this Court should intervene exercising writ jurisdiction in favour of the petitioners at this stage. CONSIDERATION: 16. Having heard both the parties, the provisions relating to the determination of tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been entrusted to lay down to regulate exercise of discretion, it cannot, however, deny itself the discretion which the statute requires it to exercise in individual cases. The proper authority notwithstanding board circular dated 12th February, 2008 is required to consider the prayer of the petitioners on its own merits well within the scope of Section 14 of the Act and the Customs Valuation Rules by a reasoned order following principles of natural justice. 19. In the instant case, the proper officer is yet to exercise discretion. As such, as on date, the petition in our considered view, is a premature. Though both the parties have tried to justify their rival contentions even on merits, we do not propose to dwell on the contention ..... X X X X Extracts X X X X X X X X Extracts X X X X
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