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TMI Blog2021 (3) TMI 1090X X X X Extracts X X X X X X X X Extracts X X X X ..... which not only confiscated the goods but also imposed penalty on the petitioner. All that the impugned order in original says is that a personal hearing was given to the authorized representative of the petitioner on 18.09.2020 through video conferencing. There is nothing on record to show or indicate that a request was made on behalf of the petitioner for oral notice or oral representation. From a reading of the impugned order in original, it does not appear that the procedure laid down for rejection of declared value and redetermination of value was followed - it is quite evident that the impugned order in original stands vitiated due to statutory infraction leading to violation of the principles of natural justice thereby vitiating the impugned order-in-original. Petition allowed. - WRIT PETITION (L) NO.3933 OF 2020 - - - Dated:- 25-3-2021 - UJJAL BHUYAN MILIND N. JADHAV, JJ. Mr. Prithviraj Choudhari i/by Vaish Associates Advocates, for the Petitioner. Mr. Pradeep S. Jetly, Senior Advocate a/w Mr. J. B. Mishra, Advocate for the Respondents P.C. Heard Mr. Prithviraj Choudhari, learned counsel for the petitioner and Mr. Pradeep S. Jetly, learned seni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the petitioner and directed that the same be redetermined at USD 13.66097 (C/F value) and USD 22.02365 (C/F value). Accordingly, petitioner was directed to pay the resultant differential duty along with applicable interest under section 28AA of the Customs Act, 1962 (briefly the Customs Act hereinafter). As a consequence, respondent No.3 confiscated the imported goods under section 111(m) of the Customs Act but gave an option to the petitioner to redeem the confiscated goods upon payment of redemption fine of ₹ 4,00,000.00 under section 125 of the Customs Act, further imposing penalty of ₹ 1,90,000.00 under section 112(a) of the Customs Act. 7. Aggrieved by the aforesaid order in original dated 23.09.2020 and assailing the same primarily on the ground that it was passed in gross violation of the principles of natural justice, the present writ petition came to be filed. 8. By order dated 06.10.2020, this Court had issued notice. On the next date i.e. on 29.10.2020, liberty was granted to the petitioner to amend the prayer portion of the writ petition and also to file interim application for release of the imported goods. 9. Thereafter petitioner had carrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance and that declared value of the goods also appeared to be low. This was orally informed to the petitioner. In response thereto, petitioner made declaration dated 02.09.2020 stating that the imported products exclusively operate in license bands and comply with the technical parameters. Price mentioned was fair and correct. On the basis of the aforesaid submission, the importer (petitioner) requested respondent No.3 to consider its prayer and to clear the goods. However, respondent No.3 was not satisfied with the submission of the petitioner with regard to valuation of the goods and accordingly a personal hearing was given vide letter dated 16.09.2020. 11.2. Importer (petitioner) was also informed about compliance of Equipment Type Approval (ETA) and requirement of licence from the Wireless Procurement Cell, in response to which petitioner initially misled the customs department by writing that Equipment Type Approval (ETA)/ licence from Wireless Procurement Cell is not applicable for the goods. After examining the representative sealed sample, petitioner was informed that the declared value of the goods was low. Therefore, it is quite clear that petitioner was well informed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23.09.2020 is concerned, he submits that the said order is clearly an appealable order. Under section 128 of the Customs Act appeal against the said order in original would lie before the Commissioner of Customs (Appeals). In such circumstances he submits that this Court may not entertain the writ petition and instead relegate the petitioner to the forum of appeal. 14. Submissions made by learned counsel for the parties have received the due consideration of the Court. 15. Basic grievance of the petitioner is to the impugned order in original dated 23.09.2020 passed by respondent No.3. However, as per order of this Court dated 03.11.2020 the imported goods have been released on petitioner furnishing bank guarantee for the amount of customs duty declared in the Bill of Entry No.8311310 dated 28.07.2020 as well as covering the redemption fine and penalty imposed vide the impugned order in original dated 23.09.2020. 16. From a perusal of the impugned order in original, it is seen that petitioner filed Bill of Entry No.8311310 dated 28.07.2020 for the imported goods declaring two varieties of smart plug having unit price of USD 4.13 and 5.036 respectively. The declared total a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of redemption fine, besides imposing penalty. 18. Confiscation of goods is dealt with in section 111 of the Customs Act. However, section 124 of the Customs Act provides for issue of show-cause notice before confiscation of goods, etc.. Section 124 of the Customs Act reads as under :- SECTION 124. Issue of show cause notice before confiscation of goods, etc.- No order confiscating any goods or imposing any penalty on any person shall be made under this Chapter unless the owner of the goods or such person - (a) is given a notice in writing with the proper approval of the officer of Customs not below the rank of an Assistant Commissioner of Customs, informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty; (b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation or imposition of penalty mentioned therein; and (c) is given a reasonable opportunity of being heard in the matter: Provided that the notice referred in clause (a) and the representation referred to in clause (b) may, at the request of the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or accuracy of the value declared in relation to any imported goods, he may ask the importer of such goods to furnish further information including documents or other evidence and if, after receiving such further information, or in the absence of a response of such importer, the proper officer still has reasonable doubt about the truth or accuracy of the value so declared, it shall be deemed that the transaction value of such imported goods cannot be determined under the provisions of sub-rule (1) of rule 3. (2) At the request of an importer, the proper officer, shall intimate the importer in writing the grounds for doubting the truth or accuracy of the value declared in relation to goods imported by such importer and provide a reasonable opportunity of being heard, before taking a final decision under sub-rule (1). Explanation.- (1) For the removal of doubts, it is hereby declared that :- (i) This rule by itself does not provide a method for determination of value, it provides a mechanism and procedure for rejection of declared value in cases where there is reasonable doubt that the declared value does not represent the transaction value; where the declared va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilability of alternative remedy, we may refer to the decision of this Court in Forbo Siegling Movement Systems India Pvt. Ltd. (supra). That was also a case where challenge was made to an order passed by the Deputy Commissioner of Customs assessing the bills of entry under Rule 9 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 read with section 14 of the Customs Act after making an addition to the declared value. After noting that such an order was subject to an appeal under section 128(1) of the Customs Act and also examining the provisions of Rule 12, it was held as under :- 10. The explanation to Rule 12 makes it clear that the rule does not by itself provide a method for determination of value but it provides a mechanism and procedure for rejection of declared value in cases where there is reasonable doubt that the declared value does not represent the transaction value. Where the declared value is rejected, the value has to be determined by proceeding sequentially in accordance with Rules 4 to 9. In the present case, the grievance of the petitioners turns upon an alleged noncompliance of the provisions of sub-rules (1) and (2) of Rule 12. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proper officer. In the absence of a disclosure of the grounds on which the doubt is entertained, the importer would not know of the case against him nor would he be in a position to explain why the doubt which the proper officer entertains as to the truth or accuracy of the value is incorrect. Hence, before the proper officer proceeds to reject the declared value, he is under a mandate to furnish the grounds in writing for doubting the truth or accuracy of the value declared by the importer. Thereupon the importer must have a reasonable opportunity of being heard to enable him to urge such submissions as he may desire in writing in regard to the grounds which are set out by the proper officer. That is the scheme. 13. In the present case, as the record before the Court would indicate, the procedure which is laid down in Rule 12 was not followed. The proper officer initially called upon the importer to submit documentary material. This was in compliance with the requirements of Rule 12(1). Upon scrutinising the material, evidently the proper officer had reason to doubt the truth or accuracy of the transaction value declared by the importer. The proper officer was required to f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that the aforesaid addition was made by the Deputy Commissioner of Customs on his own accord, without reference to Counsel, and even suggested that the offending party may be expunged. 27. Thus this Court held that where there is a breach of principles of natural justice, existence of an alternate remedy of appeal would be no bar to exercise of jurisdiction under Article 226 of the Constitution of India. 28. In the light of the discussions made above, we are of the unhesitant view that the impugned order in original is clearly unsustainable in law being in violation of the principles of natural justice as well as the statutory provisions as alluded to hereinabove. In the circumstances, relegating the petitioner to the forum of appeal does not arise. 29. Consequently, we set aside the impugned order in original dated 23.09.2020 and direct that the proper officer may proceed with the matter afresh, if he is so inclined, by following the mandate of section 124 of the Customs Act and Rule 12 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007. We further direct that respondent No.2 shall assign the hearing to a proper officer other than responde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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