9911796707
TMI Blog1975 (6) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... uashed. 3. A Rule NISI was issued on 5th October, 1972 whereby the respondent was called upon to show cause why a writ in the nature of mandamus should not be issued directing the respondent to withdraw and/or to cancel the order dated 31st December, 1971 made by him assessing and levying duty under Section 17 of the Customs Act, 1962 and also why a writ in the nature of certiorari should not be issued setting aside, cancelling or quashing the said order so that conscionable justice might be administered by setting aside, cancelling and quashing the said order. An interim stay was granted staying the operation of the said impugned order, upon the petitioner furnishing security to the satisfaction of the Registrar by way of bank guarantee to the extent of Rs. 1,50,000 in the manner as provided in the said Rule NISI. 4. The facts, shortly, are that the vessel "Loyal Ivory" of which the petitioner was the agent entered the port of Calcutta on or about 23rd August, 1969. On 30th August, 1969 the Assistant Collector of Customs, Import Noting Department, wrote to the petitioner as follows : "Gentlemen, Sub: Duty on unconsumed portion of Colombo Stores S.S. LOYAL IVORY arriv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 69 Arrived Calcutta on 23-8-1969. x x x A list has been prepared on the basis of difference between the arrived store list at Calcutta and the departure store list from Cochin for all the items of stores except fuel oil. For the purpose of duty, the entire quantity of fuel oil on arrival at Calcutta has been taken into account in absence of Engine room log book, and the same has been subjected to duty at the highest rate in absence of Technical data as per tariff. The total duty amount comes of Rs. 2,74,456.46. You are, therefore, requested to deposit the said amount of Rs. 2,74,456.46 (Rupees Two lakhs seventy four thousand four hundred fifty six and paise forty six only) in this Custom House treasury within 15 days hereof being the duty on unconsumed portion of stores uplifted at Colombo. A copy of the said list so prepared and assessed is forwarded herewith for your perusal and payment of duty involved. Seal of RECEIVED 3-JAN 1972 Yours faithfully, Sd/- B. Nanda (B. NANDA) 3/12/71 Assistant Collector of Customs for Export Gr. I." 8. The petitioner protested against the said order of assessment and intimated that by their letter dated 2nd September, 1971 they e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Marine Department, Calcutta District." 11. It appears that the petitioner wrote to their principals intimating them that the customs authorities were asking for certain documents to be produced but the attitude of the principals was to the effect that it was impossible for them to arrange such certificate to be issued by Ceylonese Customs after the vessel had completed the voyage for more than 30 days inasmuch as no Government authorities would ever keep such records for such a length of time. They advised the petitioner to repudiate such requirement and insisted that the claim was invalid as the notice of claim was not submitted within six months as required by law. 12. Mr. Mukherjee appearing on behalf of the petitioner contends that Section 28 of the Customs Act 1962 is applicable in the facts and circumstances of this case and, accordingly, notice for levying the duty not having been served on the petitioner in terms of the said section, the claim has become time barred and the Customs authorities could not have any right to levy any duty in the manner they have done. Section 28 of the Customs Act 1962 provides as follows :- "28. Notice for payment of duti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the purpose of assessing duty under sub-section (2), the proper officer may require the importer, exporter or any other person to produce any contract, broker's note, policy of insurance, catalogue or other document whereby the duty leviable on the imported goods, or export goods, as the case may be, can be ascertained, and to furnish any information required for such ascertainment which it is in his power to produce or furnish, and thereupon the importer, exporter or such other person shall produce such document and furnish such information. (4) Notwithstanding anything contained in this section, imported goods or export goods may, prior to the examination or testing thereof, be permitted by the proper officer to be assessed to duty on the basis of the statements made in the entry relating thereto and the documents produced and the information furnished under sub-section (3); but if it is found subsequently on examination or testing of the goods or otherwise that any statement in such entry or document or any information so furnished is not true in respect of any matter relevant to the assessment, the goods may, without prejudice to any other action which may be taken unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be the date, according to the said sub-section, on which the officer concerned would make an order for the clearance of the goods. In other words, the goods would be directed to be cleared by the Customs Officer after an assessment is made under Section 17 and it would thus be found that no duties would be leviable upon such assessment. In the case of assessments when it is so done in the usual course it cannot be conceived of that the goods would be allowed to be cleared before the assessment is done. It must follow, therefore, that sub-section (3)(a) of Section 28 must provide for cases where the goods were assessed and were found not to be leviable with any duty. It was only under such circumstances when it is subsequently found by the Customs Authorities that such goods were dutiable goods and ought to have been assessed by levying some duty, and in such circumstances the period provided is six months within which the show cause notice has to be served in the manner as provided in the said section. 17. It is to be noted that under the provisions of Section 42 of the said Act the vessel cannot leave the Customs' station until a written order has been issued by the proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice to show cause within the period of six months from the relevant date thereof. It was also held that if the Assistant Collector of Customs failed to take advantage of Section 28 he could not fall back on the general law and try to collect the amount thereby and to proceed against the petitioners. In my opinion, the said Madras case is distinguishable from the facts and circumstances of the case before me inasmuch as there the assessment was made and the goods were found to be duty free and the Customs Authorities allowed the vessel to leave the port. Here in the case before me there has not been any such assessment at the time the vessel was allowed to leave the port. Here the vessel was allowed to leave the port because the duty to be assessed and found leviable was provided for by the petitioner by executing the said guarantee thereby agreeing that as and when the duty would be assessed and levied the same would be paid by the petitioner. 19. Mr. Mukherjee has also referred to the Division Bench case of S. Venkatesan v. Nihal Chand Agarwalla reported in AIR 1962 Cal. 258. That case was decided under Sections 39 and 190-A of the Sea Customs Act, 1878. There the facts w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India, reported in (1961) 65 Cal WN 1206 it was held that in a case where there was no assessment by the customs authorities, the provisions of Section 39 of the Sea Customs Act could not apply and the period of three months' limitation was not attracted. In that case there was no question of inadvertence or arear etc. as contemplated under Sec. 39 of the Sea Customs Act, 1878 and as such the bar of limitation, as provided under Section 39, was not attracted and the question of demand for payment of deficiency could not arise at all. 23. Lastly, I should refer to the definition section, being Section 2, clause (2), which defines "assessment" to include assessment in which duty assessed would be nil. It speaks of assessment whatever be the amount of duty found thereby. But, in the instant case before me, the said assessment was not held. 24. Taking all these points into consideration, I hold that the petitioner is bound to fail on this point inasmuch as the provision of Section 28 of the Customs Act, 1962 is not attracted in the facts and circumstances of this case. 25. The second point which was urged by Mr. Mukherjee was about the quantum of duty assessed by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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