9911796707
TMI Blog2007 (5) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... e that the petitioner imported two consignments of Fabrics namely "Polyester Fabric Bonded". The import consignments reached at ICD, Gariharsaru, Gurgaon but were not cleared in spite of the fact that the petitioner had approached the authorities by submitting bills of entry on 15-12-2006 and 18-12-2006. It is alleged that on persistent request made by the petitioner for release of the goods, it was only on 22-12-2006 that the goods were examined. It has further been pleaded that the goods imported are seasonal in nature, which are required for manufacture of garments to be used in winters and any delay in. release of the consignments was detrimental to the business interest of the petitioner. Besides this, the petitioner was also incurring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not been passed till date as has been provided by Section 18 of the Customs Act, 1962 and despite the fact that Bills of Entry were submitted on 15-12-2006 and 18-12-2006 and, thereafter, the matter has been kept pending while awaiting the test report. Even the test report had been received on 1-2-2007, yet the assessment order has not been passed. It is not denied that the goods under import are not prohibited goods. The petitioner-entrepreneur is facing competition on account of globalization and detaining the goods for a period of over three months is likely to adverse its business interest. It is probably for that reason that instructions have been issued by the Chief Commissioner, Customs and Excise to clear the consignments pref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lue. This was for the reason that a tariff entry under which the goods were classified by the respondents carried high rate of duty as compared to the tariff entry claimed by the petitioner. The respondents having failed to carry out the interim directions given by this Court and on that account the petitioner has suffered huge loss. It has further been submitted by learned counsel for the petitioner that the action was clearly mala fide . This was without prejudice to the submission of the petitioner that at the stage of provisional assessment, the respondents could not change the tariff entry for assessment of duty. The same could be done only at the time for final assessment. At the time of provisional assessment, the goods were liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r certainly has to be used on some valid and reliable material and not merely on conjectures and surmises, which may result in unnecessary harassment of the importer. The discretion vested in him has to be exercised in reasonable and proper manner within the limits of jurisdiction conferred on him. Needless to add that there should not be arbitrary exercise of powers. The Section provides that even pending receipt of test report also the provisional assessment can be framed. In the present case, provisional assessment has been framed after the receipt of test report. So, in our view, there is some prima facie material with the proper officer to reach to a conclusion. The contention of the learned counsel for the petitioner that at the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asure, as the issue raises disputed questions of fact, which can very well be gone into in the regular assessment proceedings. Accordingly while rejecting the contention of the petitioner in this regard we hold that the petitioner is at liberty to take the delivery of the goods in terms of intimation sent to him by the respondents vide letter dated 26-3-2007 on furnishing the bank guarantee and PD bonds of the value of Rs. 10,01,278/- and Rs. 30,03,834/-, respectively. In case the petitioner complies with this direction, the goods shall be released within two days thereafter, provisionally, subject to final order being passed. 9. As far as the claim of the petitioner for suffering loss on account of undue delay caused by the respondents i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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