Judgment :- Both the writ petitions were heard together since it was represented that they complement each other literally and figuratively. Each of the petitioners had imported the components of VCD players. But it was found that the spare parts imported by one when assembled with the spare parts imported by the other resulted in a Samsung VCD player what is called complete in a knocked-down condition. Therefore, the goods imported by the petitioners when assembled constitute 3600 pieces of Samsung 3CD/VCD/MP3 players complete in a knocked down condition. The petitioner in W.P.No.33381 of 2002 has paid the admitted duty. The petitioner in W.P.No.33003 of 2002 has not paid the duty. 2. The question is whether the Customs Authority can refuse to provisionally assess duty or to club the two imports to arrive at a conclusion that there has been mis-declaration or whether they are allowed to seize the goods. According to the learned Senior Counsel for the petitioners, the respondents are bound to provisionally assess the goods and allow the importer to clear the same in accordance with the provisions of Section 18 of the Customs Act. It was submitted that though the petitioners were related, their business was different, the invoice showed different places of purchase and therefore, the import cannot be 'clubbed' together. It was also submitted that the goods were "perishable or hazardous goods" as per the Schedule to the Notification under Section 110 of the Customs Act. 3. The learned Senior Counsel relied on two judgments: (1) Union of India Vs. Tarachand Gupta ( 1983 ELT 1456 (SC)) and (2) Collector of Customs Vs. Ganesh Raja Organisation ( 2000 (122) ELT 19 (Mad). 4. In the Supreme Court judgment, the importer had imported goods which arrived in two consignments by two different ships and on examination the Customs Authority found that they constituted 51 sets of "Rixe Mopeds complete in a knocked down condition". The following paragraph was relied on by the learned Senior Counsel to support his case, "Therefore, the mere fact, that the goods imported by them were so complete that when put together would make them motor cycles and scooters in C.K.D. Condition, would not amount to a breach of the licence or of Entry 295. Were that to be so, the position would be anamolous as aptly described by the High Court. Were that to be so, the position would be anamolous as aptly described by the High Court. Suppose that an importer were to import equal number of various parts from different countries under different indents and at different times, and the goods were to reach here in different consignments and on different dates instead of two consignments from the same country as in the present case. If the contention urged before us were to be correct, the Collector can treat them together and say that they would constitute motor cycles and scooters in C.K.D. condition. Such an approach would mean that there is in Entry 295 a limitation against importation of all parts and accessories of motor cycles and scooters in C.K.D. condition. Surely, such a meaning has not to be given to Entry 295 unless there is in it or in the licence a condition that a licensee is not to import parts in such a fashion that his consignments, different though they may be, when put together would make motor cycles and scooters in C.K.D. condition. ... 24. The respondents' licence admittedly authorised them to import goods covered by entry 295. They could, therefore, legitimately import, on the strength of that licence, all and several kinds of parts and accessories of motor cycles and scooters. The only question, therefore, before the Collector was whether the respondents' licence covered the goods imported by them, i.e., whether the goods were parts and accessories. If they were, the imports were legitimate and no question of their being not covered by the licence or the respondents having committed breach of Section 3 of the Imports and Exports (Control) Act or Section 167(8) of the Sea Customs Act could possibly arise. What the Collector, however, did was that he put the two consignments together and held that they made up 51 Rixe' Mopeds in C.K.D. condition and were, for that reason, not the articles covered by entry 295 but articles prohibited under remark (ii) of entry 294. But entry 294 deals with motor cycles and scooters complete and assembled. Remark (ii) against that entry prohibits an importer who held a licence to import motor cycles and scooters from importing motor cycles and scooters in C.K.D. condition. Remark (ii) containing that prohibition had nothing to do with entry 295 which did not contain any limitations or restrictions whatsoever against imports of parts and accessories. Remark (ii) against that entry prohibits an importer who held a licence to import motor cycles and scooters from importing motor cycles and scooters in C.K.D. condition. Remark (ii) containing that prohibition had nothing to do with entry 295 which did not contain any limitations or restrictions whatsoever against imports of parts and accessories. ... 25. That being so, if an importer has imported parts and accessories, his import would be of the articles covered by entry 295. The Collector could not say, if they were so covered by entry 295, that, when lumped together, they would constitute other articles, namely motor cycles and scooters in C.K.D. condition. Such a process, if adopted by the Collector, would mean that he was inserting in entry 295 a restriction which was not there. ... That would be tantamount to the Collector making a new entry in place of entry 295 which must mean non-compliance of that entry and acting in excess of jurisdiction during the course of his enquiry even though he had embarked upon the enquiry with jurisdiction, In our view that was precisely what the Collector did. This is, therefore, not one of those cases where, between the two competing entries the statutory authority applied one or the other, though in error, and where a civil Court cannot interfere." 5. In 2000 (122) ELT 19 (Mad) the assess had a license to import parts. He imported on 22-11-1990, plastic/extuded ball-point pen barrels, and on 01-11-1990, plastic/ extruded ball-point pen knobs and caps and on 21-07-1990, ball-point pen refills. The question that was referred to by the Division Bench was whether on the facts and circumstances of the case the decision in Sharp Business Machines Pvt. Ltd., Vs. Collector of Customs ( 1990 (49) ELT 640 ) and 1983 (13) ELT 1456 (supra), the goods imported by the respondent would require a specific license. The Bench held that the relevant entries in the import policy permitting importation of parts were not subject to a further condition that the parts which were imported should not be constituted consumer goods in a knocked down condition. 6. The Bench held that the relevant entries in the import policy permitting importation of parts were not subject to a further condition that the parts which were imported should not be constituted consumer goods in a knocked down condition. 6. The learned Senior Counsel referred to letter F.No.450/82/95-Cus.IV, Government of India, Ministry of Finance, Department of Revenue, Central Board of Excise & Customs dated 7th July 1997, "The Customs Department on its part may consider the feasibility of framing a policy by dividing the imported goods in different categories. Where the import is not prohibited or it is against licence or permit and the only dispute is about valuation or the tariff item under which it falls, it may be released on furnishing of bank guarantee or security sufficient to secure the interest of Department subject to final decision. This determination should be done at the airport. It would obviate the necessity of storing goods, save the IAAI or CWC from unnecessary botheration, protect the Department and serve the importer better." This has been issued to avoid unnecessary detention of imported cargo and exported cargo referring to a judgment of the Supreme Court to the effect that where the import is not prohibited or it is against license or permit and the only dispute is about valuation or the tariff item under which it fall, it may be released on furnishing of bank guarantee or security sufficient to secure the interest of Department subject to final decision. 7. The learned Senior Counsel therefore, prayed that there can be a direction to the respondents to provisionally assess the duty for the goods imported under Bill of Entry No.398480 dated 27-05-2002 (W.P.No.33003 of 2002) and No.398282 dated 27-05-2002(W.P.No.33381 of 2002) and direct release of goods. 8. The Learned Additional Solicitor General, however, would submit that in the present case, the petitioner cannot claim provisional assessment of duty as a matter of right. Mandamus can be issued only when there is legal right and a corresponding legal duty. The imports under the two bills of entry are part of a 'design' calculated to evade payment of customs duty. It cannot be pure chance, that the goods imported by the two petitioners meshed with each other to form complete sets. Mandamus can be issued only when there is legal right and a corresponding legal duty. The imports under the two bills of entry are part of a 'design' calculated to evade payment of customs duty. It cannot be pure chance, that the goods imported by the two petitioners meshed with each other to form complete sets. According to the learned Additional Solicitor General, the investigation is in motion and if now a direction is given to release the goods it would scuttle the entire investigation process. It was also submitted that the petitioners have not co-operated with the enquiry and reference was made to Paragraph Nos.6,12 and 13 in the counter to show that there was a deliberate intention to evade duty. The Additional Solicitor General would submit that while time limit may be fixed for investigation, the goods cannot be directed to be released. 9. An admitted fact in this case is that the duty payable by the petitioners if they import the VCDs as fully assembled would be higher than the duty payable if they have imported it as spare parts. It is not the case of the respondents that the import of the VCD players fully assembled is prohibited. The only difference is with regard to the incidence of duty and the classification of the item. 10. Section 18 of the Customs Act deals with the provisional assessment of duty and under Section 18(c) if the officer deems it necessary to make further enquiry for assessing the duty, though the importer or the exporter has produced all the necessary documents and furnished full information, he may direct that the duty be assessed provisionally pending the production of documents or furnishing of such information or completion of such test or enquiry. 11. According to the petitioners they have furnished all the information. The difficulty is that the respondent is convinced that the petitioners have purchased 3600 Samsung VCD players and have deliberately dismantled them and imported them as spare parts under two bills of entry so as to evade the higher incidence of duty. 11. According to the petitioners they have furnished all the information. The difficulty is that the respondent is convinced that the petitioners have purchased 3600 Samsung VCD players and have deliberately dismantled them and imported them as spare parts under two bills of entry so as to evade the higher incidence of duty. In the two decisions, relied on behalf of the petitioner, the Supreme Court and this Court had held that when there is no stipulation in the policy or the license that the imported parts should not be such as to constitute the consumer goods in a knocked down condition, then the import is in order and no further specific license is required. 12. In this case, the petitioner seeks release of goods after provisional assessment of duty. The question whether the import is in order may come later. But the decisions seem to indicate that in similar situations the import has been held to be in order. The hurdle in the way of release of these goods appears to be the fact that the enquiry is not concluded. The goods were imported on 27-05-2002. The paragraph Nos.6 to 13 referred to physical features of the containers or consignments which had convinced the officers that there has been an effort to evade payment at the correct rate of duty. Therefore, these are already the part of the record. Any physical examination of the goods or comparison of the parts which is yet to be done or ascertainment from the foreign dealer that has not been completed, may be easily done in two weeks. The details regarding the invoice, the verification whether the items were bought in an assembled stage and then dismantled is something that can also be easily ascertained. Once these details are gathered then retention of the goods in the ware house is not necessary, especially when the grounds for retaining the goods is not because the import of the spare parts is prohibited. The reason what the respondents perceive is a "common design". 13. It was urged on behalf of the petitioner that they are perishable goods and that these goods come under the heading of "perishable or hazardous goods". In the first place it is difficult to accept that these spare parts or components are perishable. The notification reads thus: "Seizure of Perishable or Hazardous Goods – Section 110(A) of Customs Act. 13. It was urged on behalf of the petitioner that they are perishable goods and that these goods come under the heading of "perishable or hazardous goods". In the first place it is difficult to accept that these spare parts or components are perishable. The notification reads thus: "Seizure of Perishable or Hazardous Goods – Section 110(A) of Customs Act. - In exercise of the powers conferred by sub-section (1A) of section 110 of the Customs Act, 1962 (52 of 1962), the Central Government, having regard to the perishable nature, depreciation in the value with the passage of time, constraints of storage space and valuable nature, mentioned in the Schedule hereto annexed, hereby specifies the said goods for the purposes of that sub-section." 14. It is clear that they are classified as 'perishable or hazardous goods". a) because they are perishable in nature, or b) because they may depreciate in value by passage of time, or c) because there are constraints of space and valuable nature of the goods. These goods are stored in the M1/9 ware house and there is no danger of them coming into contact with dangerous chemicals or inflammable materials and it appears that considering the petitioners' representation,the goods were permitted to be stored at the said ware house. This brand has not yet reached the Indian market. So there is no danger of goods becoming obsolete in the short span of time. So this ground is not available for the petitioners. 15. Even if these goods had been confiscated then under Section 125 of the Customs Act, the authority is bound to give the importer the option to pay fine in lieu of confiscation. The authority may order absolute confiscation without giving the above said option only if the import is totally prohibited under this Act. That is admittedly not so in this case. 16. It is true that the enquiry is not over, which alone would enable the authority to arrive at the correct assessment. But it is in these circumstances that Section 18(c) of the Customs Act can be invoked and the circular referred to above also shows that prolonged detention at the ware house is not in anyone's interest. 17. 16. It is true that the enquiry is not over, which alone would enable the authority to arrive at the correct assessment. But it is in these circumstances that Section 18(c) of the Customs Act can be invoked and the circular referred to above also shows that prolonged detention at the ware house is not in anyone's interest. 17. Therefore, in the facts and circumstances of the case, the writ petitions are disposed of by directing the authorities to complete such physical verification as is necessary for the purpose of enquiry within a period of two weeks from the date of this order and thereafter, provisionally assess the duty in accordance with the provisions of Section 18 of the Customs Act within one week from that date and release the goods on such terms as the Officer deems fit and in accordance with law.