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TMI Blog2015 (10) TMI 605X X X X Extracts X X X X X X X X Extracts X X X X ..... as been placed for passing judgment/final orders today. 3) By this Petition under Article 226 of the Constitution of India, the Petitioner is requesting to call for the records pertaining to the impugned communications referred to in prayer clause (a) and after examining their legality and validity to quash and set aside the same. 4) The Petitioners are also seeking to restrain the Respondents from enforcing the said communications and recovering any differential duty. The Petitioner is seeking a direction to the Respondents to cancel a final assessment of bill of entry dated 26th October, 2009 and pass a speaking order after affording an opportunity of being heard to the Petitioner. 5) The Petition is filed in this Court on 7th July, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining to the import of Sulphur at the time of assessment. The Petitioner submits that on 18th March, 2010 and after the show cause notice was issued, the Superintendent of Customs (Preventive) - fourth Respondent to this Writ Petition inter alia requested the Petitioner to provide the original documents in respect of the general manifest of bill of entry mentioned in the Annexure attached to this letter so as to enable the Department to finalise the assessment of goods imported. In para 15 of this Writ Petition, the Petitioner points out that a detailed reply was given to the show cause notice but thereafter they did not hear anything from the Department. However, a communication dated 28th September, 2013 was addressed and thereafter recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unable to furnish the original documents at the time of import and also for want of test results. There was a bond executed and in the circumstances, the authority demanded the differential duty. The notice to show cause was issued but thereafter, the assessment was finalised under section 18(2) of the Customs Act based on the documents available. 10) With reference to the specific allegations in the Writ Petition and to be found from para 12 onwards, Mr. Kantharia would submit that the finalisation of the assessment is appealable order and an appeal would lie to the appellate authority. Therefore, this Writ Petition should be dismissed. 11) When this Petition was placed before us on the earlier occasion, after hearing both sides on 5th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at present in the office records. Reliance is placed on Annexures '2' and '3' to the affidavit in reply dated 2nd September, 2015, but what we find is that is stated to be a proof of dispatch of some communication by Registered Post Acknowledgment Due at the Petitioner's stated address. Finally assessed bill of entry is annexed as Annexure '3' to this affidavit. 13) In the light of this fair statement and stand taken by the Respondents in the affidavit, it is evident that neither there is any record of personal hearing to the Petitioner nor there is a further record of a finalisation of the assessment and its communication to the Petitioner. 14) Once the Petitioner's essential averments in the Writ Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven facts and circumstances. In that Writ Petition in the case of M/s. Krishna Chemicals vs. Union of India and Ors. (Writ Petition No. 9787 of 2014 dated 24th August, 2015), the Petitioner had not disputed that a communication dated 10th May, 2011 was despatched by Registered Post Acknowledgment Due and this was received. There is a response thereto by letter dated 28th November, 2011. The Petitioner did not approach the Court immediately thereafter but sought to rely upon an order passed by this Court in another Writ Petition and on distinct facts. When the Petitioner was informed that the communication dated 10th May, 2011 is an order of the competent authority and therefore appealable, neither of the remedies, namely filing of an appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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