LALBHAI TRADING COMPANY Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition primarily challenges the order in appeal made by the Commissioner of Customs (Appeals) on 6/6/2005 (Annexure-A) under Article 226 of the Constitution of India. The petitioner has prayed for the following reliefs : YOUR LORDSHIPS may be pleased to admit and allow the present petition; YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ or order holding and declaring that the impugned order (Annexure-A) is violative of principles of natural justice and are also violative of Articles 14, 19(1)(g); YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ or order holding and declaring that the impugned notices (Annexure-B) are violative of principles of natural justice and also violative of Articles 14, 19(1)(g) and 300A of the Constitution of India and they are also irrational, oppressive, without application of mind and arbitrary besides being contrary to or in non-compliance of and/or disregard to the provisions under the Customs Act,1962; YOUR LORDSHIPS may be pleased to issue a writ of mandamus or certiorari or a writ in the nature of mandamus or certiorari or any other appropriate writ or order quashing and setting aside the impugned order issued on 6/6/1995 in Appeal No. 55/2005 (Annexure A) and the impugned notices (Annexure B colly.) i.e. the notices dated 23.7.2004, 12.8.2004, 21.8.2004, 27.8.2004, 22.9.2004 and 19.11.2004 and also quash the direction to the petitioners to get the alleged dues deposited on priority basis failing which proceedings may be initiated against the noticee; Pending hearing and final disposal of present petition, YOUR LORDSHIPS may be pleased to pass appropriate writ, order or direction, as and by way of interim relief, staying the implementation, execution and operation of the impugned order issued on 6.6.2005 in Appeal No.55/2005 (Annexure A) and also of the impugned notices dated 23.7.2004, 12.8.2004, 21.8.2004, 27.8.2004, 22.9.2004 and 19.11.2004 (Annexure B colly) and restraining the respondents their officers and agents from acting on the basis of or in pursuance of the impugned order and/or impugned notices and/or the final assessment order dated 14.5.2001 and from taking any action including any coercive action in any manner whatsoever for recovering the dues of the said importer-owner; An ex parte ad interim relief in terms of Para 9(E) above may kindly be granted; Any other and further relief/s as may be required in the facts and circumstances of case may also be granted.

(2.) The petitioner, a partnership firm, at the relevant point of time, was carrying on business of the Custom House Agent and in the course of the said business acted in that capacity for respondent No.4 i.e. M/s.Golden Plastics Company (importer). The said concern i.e. Golden Plastics Company imported certain goods known as HDPE and filed Bill of Entry No.17/95. The importer was permitted to clear goods on provisional basis after provisional assessment was framed. Pending final assessment the importer owner was called upon to submit a bond as per provisions contained in Section 18 of the Customs Act,1962 (the Act) read with rules 2 & 3 of the Customs (Provisional Duty Assessment) Regulations,1963. On 18/2/1995 the said importer owner submitted the bond. The goods were provisionally cleared on 6/6/1995. Thereafter, the Order-in-Original i.e. Final Assessment Order was framed exparte on 14/5/2001 and the importer directed to discharge the liability amounting to Rs.35,09,317/- along with interest thereon.

(3.) The petitioner was served with notices dated 23/7/2004 and 12/8/2004. The stand of the respondent authority is that the petitioner had acted as a surety and on failure of the importer to discharge the liability, the petitioner must pay up the outstanding dues. The petitioner therefore wrote on 20/8/2004 and 24/8/2004 informing the authorities that it was not having any records with it and requested for the entire correspondence etc. However, the respondent authorities further served notices on 27/8/2004, 22/9/2004 and 19/11/2004 calling upon the petitioner to discharge the liability arising in light of Order-in-Original No.43/AC/ICD/2001 dated 14/5/2001. The petitioner was also informed that in the event of non payment of dues by the importer the petitioner should either recover the amount from the importer or it should itself pay the demanded amount failing which the licence of the petitioner as Custom House Agent would be suspended/revoked.