RAGHUNATH INTERNATIONAL LIMITED Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) The petitioner, an importer, in this petition under Article 226 of the Constitution seeks an appropriate writ, order or direction quashing the action of the respondents in causing any obstruction to the dearance of its impored goods being gambier extract of Myanmar (Burmese) origin in terms of four bills entry three of which were filed on 1 December 1994 and the fourth on 5 December 1994. A writ of mandamus or any other appropriate writ, order or direction is also sought a direction to the respondents that petitioner be allowed to clear the 'gambier' extract on the strength of an order passed by the proper officer for dearance of the goods on the basis of provisional assessment of duty under Section 18 of the Customs Act, 1962 (for short 'the Act').

(2.) Petitioner says it imported gambier extract of Myanmar (Burmese) origin from Singapore which is a dutiable item. Bills of entry were filed but the goods were not being released. Petitioner says it produced all the relevant documents which were, however, seized but finally on representation made by it on 27 January, 1995 for permitting the provisional dearance of the goods the orders were made. It says provisional dearance of the imported goods was allowed subject to payment of duty in cash on the declared price and on execution of a Bank guarantee for almost three times of the dedared price. The petitioner had dedared the price (CIF) at US dollars 1575 per metric tonne. Petitioner says once having accepted the duty in cash and also the Bank guarantee, the respondents had no jurisdiction to stop the clearance of the goods when once orders have been made clearing the goods "out of charge". It is submitted that "out of charge" would mean that all the formalities have been completed and imported goods are no longer in the custody of the respondents. Petitioner says inspite of the fact that its business premises were searched on 15 December, 1994 the goods were nevertheless allowed to be cleared on the basis of provisional assessment of duty.

(3.) Respondents have denied the allegations of the petitioner. They have submitted that the petitioner had misdedared the goods both as regards the country of origin and the value thereof. According to the respondents inquiries revealed that the goods were of Indonesian origin of CIF Value US dollars 2800 per MT. They further state that if the goods are of Myanmar origin import duty leviable would be at the rate of 50% ad valoram while if the origin of the goods is any other country the rate of duty would be 65% ad valoram of the declared value of the goods. The respondents also deny that any of the goods had left the custody of the respondents and that the goods could not have been seized. According to the respondents, therefore, the goods in question are liable to an order of confiscation and imposition of penalty on the petitioner. Under Clause (m) of Section 111 of the Act, the goods brought from a place outside India shall be liable to confiscation if these do not correspond in respect of the value or any other particular with the bill of entry made under this Act. In M/s. Singhal Trading Co. v. Collector of Customs, New Delhi and Others, CWP No. 1873/95, decided on 8 August 1995, we have taken a view that where it is a case of misdeclaration and imported goods are liable to order of confiscation. Section 18 of the act"may not have any application. Moreover, provisional assessment may be permitted pending some inquiry, but when no inquiry is pending and show cause notice has already been issued under Section 124 of the Act, as in the present case, the question of resort to Section 18 will not arise. We do not think, however, that the respondents are right in their submission that Section 18 does not contemplate passing of any order and that it merely talks of the fact that proper officer may assess the goods provisionally in situations mentioned therein. After an order under Section 18 assessing provisionally the duty leviable on the imported goods. Section 47 will come into operation for clearance of the goods for home consumption. Section 47 contemplates two stages: (1) assessment and payment of duty, and (2) order permitting clearance of the goods for home consumption by the proper officer. In the present case, there is a dispute particularly with reference to two bills of entry whether orders have been made permitting the clearance of the goods for home consumption. While the petitioner says the orders were made, the respondents contend to the contrary. There may or may not be any dispute regarding payment of duty and giving of Bank guarantee on provisional assessment basis, but dispute does exist about any order for clearance of the goods for home consumption. On two bills of entry rubber stamp has been put which reads as under:-