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2008 DIGILAW 114 (CAL)

Global Fashions International v. UNION OF INDIA

2008-01-25

SOUMITRA PAL

body2008
Judgment SOUMITRA PAL, J. (1) IN the writ application the petitioner has challenged the show-cause notice dated 29th August, 2007 issued by the Assistant Commissioner of customs and the corrigendum dated 26th September, 2007 and has prayed for release of the imported goods. (2) THE petition was moved on 11th October, 2007 when directions were issued for filing of affidavits. In the said order it was recorded that if the petitioner applied for release of the goods on provisional assessment of duties, the concerned authority should consider the same and dispose of such application within a period of three weeks in accordance with law. (3) THE grievance of the petitioner is that though the learned Single Judge on 11th October, 2007 had directed release of the goods on provisional assessment of duties, the respondent No. 3 did not bring it to the notice of the Court that the said respondent had passed an order in original making the final assessment on 8th October, 2007 which, according to the petitioner, was received on 12th October, 2007. It is argued that pursuant to the leave granted the petitioner furnished a representation dated 26th October, 2007 with a prayer for provisional release of goods. Submission is though from the intimations dated 19th November, 2007 and 22nd November, 2007 it appears that pursuant to the order dated 8th October, 2007 the department was in seisin of the matter regarding provisional release of goods, in those intimations the order in original finds no mention. It is argued that pursuant to the order dated 20th December, 2007 granting liberty to the petitioner to make a fresh application for modifying the terms imposed for release of the goods on provisional assessment, application was filed on 28th December, 2007 since an importer similarly situated was granted relief. Contention is that the order dated 17th January, 2008 regarding modification of the terms for release of the goods on provisional assessment does not speak of the issues raised in the application dated 28th December, 2007. The petitioner has disputed the fact, as stated in the supplementary affidavit filed by the respondent, that his agent was informed about the order in original on the same day on which it was passed since it appears from the order itself that it was issued on 10th October, 2007. The petitioner has disputed the fact, as stated in the supplementary affidavit filed by the respondent, that his agent was informed about the order in original on the same day on which it was passed since it appears from the order itself that it was issued on 10th October, 2007. Submission is made that under Regulation 2 of the Customs (Provisional Duty Assessment) Regulations, 1963 when the proper officer on account of any of the ground specified in subsection (1) of section 18 of the Customs Act, 1962 is unable to make final assessment he shall allow provisional assessment on the conditions as stipulated therein. (4) LEARNED Advocate appearing on behalf of the customs authorities submits that the order in original dated 8th October, 2007 was communicated on the same day to the clearing house agent of the petitioner and intimations dated 19th November, 2007 and 22nd November, 2007 and the order dated 17th January, 2008 were passed in compliance with the orders dated 11th October, 2007 and 20th December, 2007. (5) I find from the submissions advanced and the application that the learned single Judge had on 11th October, 2007 passed an order granting liberty to the petitioner to apply for release of the goods on provisional assessment of duties. Consequent thereto the petitioner had filed a representation dated 26th October, 2007 for provisional release of goods. Strangely enough though it is contended on behalf of the respondents that order in original was passed on 8th October, 2007, yet the order does not find a mention in the intimations dated 19th November, 2007 and 22nd November, 2007 wherein it appears that the authorities were in seism of the matter regarding provisional assessment. I find, thereafter, the matter came up on 20th December, 2007 when liberty was granted to the petitioner to make fresh application for modifying the terms imposed for release of the goods on provisional assessment. According to the petitioner such prayer was made because an importer similarly situated had been granted relief. Pursuant to the leave granted, on 28th December, 2007 the petitioner filed an application for provisional assessment. By an order dated 17th January, 2008 the respondent No. 3 disposed of the application dated 28th December, 2007. According to the petitioner such prayer was made because an importer similarly situated had been granted relief. Pursuant to the leave granted, on 28th December, 2007 the petitioner filed an application for provisional assessment. By an order dated 17th January, 2008 the respondent No. 3 disposed of the application dated 28th December, 2007. The issue for consideration is whether the order in original dated 8th October, 2007 survives after the intimations dated 19th November, 2007 and 22nd November, 2007 and the order dated 17th January, 2008. In my view, the conduct of the respondent in passing such intimations and order is of prime consideration. I find by issuing the intimations and the order dated 17th January, 2008 the authorities have virtually recalled the order of final assessment dated 8th October, 2007. It assumes significance since admittedly as no application seeking modification of the orders dated 11th October, 2007 and 20th December, 2007 has been filed. Therefore, in my view, by intimations dated 19th November, 2007, 22nd November, 2007 and by order dated 17th January, 2008 the order in original dated 8th October, 2007 stood recalled. As it has been alleged by the petitioner, and quite justifiably, that the points raised in the application for provisional assessment has not been considered in the intimations and order, the intimations dated 19th November, 2007 and 22nd November, 2007 and order dated 17th January, 2008 are set aside and quashed. Since I have held that by the actions of the respondent No. 3 the order in original stands recalled, I direct the respondent No. 3 to pass an order regarding provisional assessment de novo within a period of seven days from the date of communication of this order. Since by the action of the respondent No. 3 I find that the order in original dated 8th October, 2007 stood recalled, said order cannot survive in any manner whatsoever and, therefore, is quashed. So far as the issue regarding clearing of the goods on the basis of provisional assessment is concerned it is for the customs authorities to decide in accordance with law. (6) THIS order is passed without prejudice to the rights and contentions of the parties. (7) AS prayed for time to file affidavit-in-opposition is extended till 15th February, 2008. Reply thereto, if any, by 22nd February, 2008. Thereafter, parties are at liberty to mention the matter for hearing upon notice. (6) THIS order is passed without prejudice to the rights and contentions of the parties. (7) AS prayed for time to file affidavit-in-opposition is extended till 15th February, 2008. Reply thereto, if any, by 22nd February, 2008. Thereafter, parties are at liberty to mention the matter for hearing upon notice. (8) THE application being G.A. No. 3599 of 2007 is disposed of. 8. All parties concerned are to act on a signed copy of the minutes of the operative portion of this order on the usual undertakings. Application disposed of.