MOHAMMED FARIZ AND COMPANY Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) Appellants are regular importers of Betel Nuts through Cochin Port. When appellants imported a consignment of Betel nuts from abroad through Cochin Port, the proper officer, who was to assess duty and release the goods on appellants paying duty, raised a dispute on valuation in as much as he doubted the invoice and other documents produced in support of appellants' claim of value of the goods imported. When dispute arose on the valuation for the purpose of assessment of duty finally, appellants requested for provisional assessment of duty under Section 18 of the Customs Act, 1962 (hereinafter called as Act for short) and release of goods on part payment of duty and on execution of bond for the balance duty amount. However, this was declined by the Assistant Commissioner of Customs, against which the Writ Petition was filed for a direction from this Court to the said Officer to make provisional assessment under Section 18 of the Act and for release imported consignments. The learned Single Judge held that provisional assessment is exclusively within the discretion of the Officer who has to assess the duty, and importers cannot as a matter of right seek for provisional assessment of duty and release of goods. It is against this judgment, the appellants have filed this Writ Appeal.

(2.) We have heard Shri. C.K.Karunakaran, learned counsel appearing for the appellants, and Shri.John Varghese, learned Senior Standing Counsel appearing for the Customs and Excise Department.

(3.) During hearing, the appellants conceded that for the cargo imported by the appellants, final assessments have been made and the appellants have, infact, filed appeal against such final assessment of duty before the Commissioner (Appeals). However, the appellants case is that even though no direction for provisional assessment is sought in respect of the consignment already imported and released, the appellants want to challenge the judgment of the learned Single Judge because the findings in the impugned judgment will bar them from getting goods imported later released based on provisional determination of duty. We are also informed that a Division Bench of this Court in W.A.No.2050/2010 filed against the very same impugned judgment, without going into the details of the contentions raised, directed release of the goods on provisional assessment of duty and on payment of 50% of the same and on furnishing Bank Guarantee for the balance duty amount assessed provisionally. However, since the question raised i.e. whether importers as a matter of right can claim provisional assessment of duty and release of goods on part payment of duty and on furnishing bond for balance amount of duty under Section 18 of the Act, is not decided by the Division Bench in the above referred judgment, we proceed to decide the issue at the request of both sides.