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TMI Blog2020 (5) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... d and involves a long drawn legal battle, which has continued till date. The final adjudication could not be made in the wake of this challenge and the directions issued by the CESTAT. However, that also cannot be a ground for the court to permit breach of the principles of natural justice - It is not only about the grant of an opportunity of being heard to the party concerned, but of complying with the principles of natural justice, which includes the furnishing of relevant documents also, which is vital for the purpose of adjudication. Considering the facts of the case, this court is of the opinion that the communication dated 15.11.2018 addressed to the advocate for the petitioner by the Office of the respondent No.2 stating that in case of non furnishing of final submissions by the petitioner before 30.11.2018, the case shall be proceeded for final adjudication, deserves indulgence. The action of the respondent No.2 authority seeking to proceed with the assessment of the petitioner, without complying with the directions issued by the CESTAT in its order dated 20.01.2017, would entail to the exercise of the powers by this court since the authority, which, otherwise has the po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f mobile phones like battery, mother board, front cover, antenna, etc. The said products were imported through the Foreign Post Office (FPO) and were assessed to custom duties. The petitioner paid such duty on the imported goods. 2.2 It is averred by the petitioner that the Rules Regarding Postal Parcels and Letter Packets From Foreign Ports In Out Of India, which have been amended from time to time, govern the landing and clearing of parcels and packets forwarded by foreign mails or by passenger vessels or air liners at ports mentioned therein and at all the Land Customs Stations and Airports. A few other traders, some of them who are the relatives of the petitioner, had also imported such goods, which were assessable to custom duties. The said goods were cleared for consumption on payment of assessed custom duties. 2.3 Between May 2002 to December 2002, in all, 122 separate consignments were imported by seven such persons, including the petitioner and they all were assessed to duties and allowed to be cleared for home consumption. According to the petitioner, the assessment and import of all the 122 consignments of parts of mobile phones stood concluded and finalized. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide judgment and order dated 20.01.2017, the CESTAT held that there was breach of the principles of natural justice as the petitioner was not provided with the relevant documents so that he could get an opportunity to defend himself and accordingly, remanded the matter to the Commissioner (Customs), Ahmedabad for adjudication afresh within a period of four months from the date of receipt of the order, after giving due opportunity of hearing and submission of evidence to the petitioner. It is the case of the petitioner that pursuant to the order of remand passed by the CESTAT, on 20.01.2017 the petitioner was given a personal hearing by the respondent No.2 on 20.01.2007. However, no documents as directed by the CESTAT were supplied to the petitioner. 3. The petitioner had made a request to the respondent No.2 to supply copies of relevant documents in relation to the 122 consignments. Thereupon, the Assistant Commissioner of Customs from the Office of the respondent No.2 wrote a letter dated 19.12.2017 to the Assistant Commissioner of Customs (Preventive) asking to provide copies of (i) import declarations (ii) import invoices (iii) assessment sheets/memos and (iv) parcel bills to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner to seek adjournment in view of the fact that this court was in seisin of the matter and directed the authority to grant adjournment and post the matter only after the hearing of this petition. This direction has continued till date. 5. In response to the notice, the respondent No.2 appeared and filed its affidavit in reply denying all the averments and allegations. It has questioned the maintainability of this petition on the ground that all the averments could be raised before the authorities concerned. It is the stand of the respondents that the documents, as sought for by the petitioner, were his own documents and hence, their copies could not have been asked for. It is also the case of the respondent that the petitioner could not have approached this court on the ground of breach of the principles of natural justice inasmuch as the adjudication would be on the strength of the available documents on the record. Moreover, the adjudication process is not yet over and any culmination of such process shall be subject to appeal under section 129 of the Act. Hence, the petitioner could not have approached this court under writ jurisdiction. 5.1 It is also the say of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents to serve those documents. 7. Per contra, Mr. Parth Bhatt, learned senior standing counsel appearing for the respondents, has urged that this court would have no jurisdiction to issue the writ of prohibition in the given set of facts. It was submitted that it is only when the authority concerned has no jurisdiction and it continues to exercise the powers that such writ could be exercised. Here is a case where the authority concerned is empowered to assess the net invoiced bills and therefore, it cannot be said that it is acting without jurisdiction. 7.1 It was submitted that all contentions which have been raised in respect of the breach of the principles of natural justice could be raised before the concerned authority and an appeal has also been provided under section 129 of the Customs Act (hereinafter referred to as the Act ) against the order passed by such authority. The petitioner could raise every defence before the authority concerned instead of agitating the same before this court. 7.2 Learned standing counsel urged that differential duty is required to be assessed on the imported goods inasmuch as different parts had been imported and an attempt has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sonal hearing took place after about 10 months, which was in November 2017. Prior to this hearing, a communication was addressed to the respondent No.2 on 04.11.2017, whereby the authority concerned was reminded of the order passed by the CESTAT and a request was made for supplying the relevant documents. 10.1 It appears that on 07.11.2017, when the hearing took place, nothing happened. Therefore, communication dated 19.12.2017 was addressed to the Assistant Commissioner of Customs (Preventive) and Assistant Commissioner of Customs (F.P.O.) by the Office of the respondent No.2, wherein a mention was made of the fact that a fresh preliminary hearing was held on 07.11.2017 and the learned advocate appearing for the assessee, i.e. the petitioner, had sought documents. 10.2 The petitioner filed his Written Submissions, wherein also, a request was made to supply copies of the declarations, invoices, assessment sheets and parcel bills. However, it appears that the said request was not acceded to. 10.3 Another communication dated 09.08.2018 was addressed to the Principal Commissioner of Customs, Ahmedabad reiterating the request, wherein it was stated pursuant to the earlier letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Noticee appellants the relevant documents/evidences so as to enable them to defend themselves to be violative of the principles of natural justice and accordingly, directed the respondent authority to furnish all the relevant documents and to complete assessment within the period stipulated in the order. 13. The court notices that the order dated 20.01.2017 passed by the CESTAT has not been complied with by the respondents. Instead of approaching the CESTAT seeking modification of its order dated 20.01.2017, the respondent No.2 has proceeded with the assessment proceedings in utter disregard of the directions issued by the CESTAT. In our opinion, if the respondent No.2 was of the view that it would not be possible for it to comply with the directions issued by the CESTAT in the order dated 20.01.2017, then it ought to have taken recourse to any other remedy available under the law. The respondent authority could not assume the role of a Judge in its own cause. 14. At this stage, a reference to section 129B of the Customs Act, 1962 would be apposite. Subsection (1) thereof authorises the Appellate Tribunal to pass such orders as it thinks fit for affirming, modifying or an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated period instead of insisting upon the petitioner to go ahead with the assessment. This can never be the spirit of assessment and the assessee concerned cannot be sent from pillar to post, particularly, on the very issue on which the challenge has been made. 15. This court is conscious of the fact that the differential duty imposed upon the present petitioner and six other Noticees is huge. The matter is quite old and involves a long drawn legal battle, which has continued till date. The final adjudication could not be made in the wake of this challenge and the directions issued by the CESTAT. However, that also cannot be a ground for the court to permit breach of the principles of natural justice. 16. It is not only about the grant of an opportunity of being heard to the party concerned, but of complying with the principles of natural justice, which includes the furnishing of relevant documents also, which is vital for the purpose of adjudication. Considering the facts of the case, this court is of the opinion that the communication dated 15.11.2018 addressed to the advocate for the petitioner by the Office of the respondent No.2 stating that in case of non furnishing of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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