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TMI Blog2021 (6) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... re filed W.P.(MD)No.11687 of 2020 seeking to be furnished with a certified copy of the same. Vide order dated 15.09.2020, the Writ Petition was allowed and the respondent was directed to furnish the petitioner with a certified copy of the said order. It was made clear that the issue of limitation was left open. In compliance with the direction given by this Court, the respondent served a copy of the impugned order on the petitioner and thereafter, the present writ petition has been filed assailing the same. 3.The respondent has filed a detailed counter affidavit controverting the stand of the petitioner. The respondent would contend that the order-in-original was served on the petitioner's customs broker as early as on 16.08.2018. Since the petitioner failed to avail the alternative remedy of appeal and the limitation period had also expired, the present writ petition is not maintainable. The stand taken in the impugned order has been reiterated in the counter. 4.The petitioner has filed a rejoinder in response to the counter along with a typed set of papers. 5.The foremost contention raised by the learned standing counsel is that the present writ petition will have to be di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution of India." 8.Now the question that has to be determined is whether the case on hand would fall within one of those parameters. The facts are fairly clear. The petitioner had imported what are known as refractory bricks. The petitioner had enclosed materials to show that the import of these refractory bricks are being freely allowed by other ports in the country. He claimed that till recently, Tuticorin Port has been permitting their free import and only now they have taken the stand that they are restricted items and prior authorisation of DGFT is necessary. 9.The petitioner in his letter dated 06.08.2018 addressed to the respondent had taken the stand that the goods in question are used as basic raw material by the Industries for their finished products. The manner in which the goods are being used by the manufacturer had also been indicated. More than anything else, he had pointedly contended that there is no policy violation. If the respondents were to still insist that the goods in question are restricted items, then, the onus is on the respondent to get the issue clarified from DGFT. The Customs Act, 1962 is not a standalone legislation. The customs authority is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of goods referred to in sub-section (1) and for this purpose, examine or test any imported goods or export goods or such part thereof as may be necessary. [Provided that the selection of cases for verification shall primarily be on the basis of risk evaluation through appropriate selection criteria.] (3)For the purposes of verification under sub-section (2), the proper officer may require the importer, exporter or any other person to produce any document or information, whereby the duty leviable on the imported goods or export goods, as the case may be, can be ascertained and thereupon, the importer, exporter or such other person shall produce such document or furnish such information. (4)Where it is found on verification, examination or testing of the goods or otherwise that the self- assessment is not done correctly, the proper officer may, without prejudice to any other action which may be taken under this Act, reassess the duty leviable on such goods. (5)Where any re-assessment done under sub-section (4) is contrary to the self-assessment done by the importer or exporter and in cases other than those where the importer or exporter, as the case may be, confirms his acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the matter without issue of show cause notice and personal hearing. The learned standing counsel would rely on the decision reported in (2002) 4 SCC 316 (Commissioner of Customs, Bombay vs. Virgo Steels, Bombay and Ors.) for the proposition that even though a provision of law is mandatory in its operation, if such provision is one which deals with the individual rights of person concerned and is for his benefit, the said person can always waive such a right. 14.Though there is considerable force in the aforesaid objection raised by the learned standing counsel, I am of the view that in the facts and circumstances of this case the procedure laid down in Section 124 of the Customs Act, 1962 ought to have been followed. Section 124 of the Customs Act reads as under : "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 prior 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 confi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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