KASTHURI Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THIS writ petition has been filed by the petitioner praying to issue a writ of certiorarified Mandamus calling for the records of the second respondent in proceedings F. No. S30/1210/94-GR. 5a, dated 25. 10. 1998, quash the same and consequently forbear the second respondent from demanding or levying any duty in respect of the facsimile equipment imported by the petitioner under Bill of Entry No. D. 813 dated 4. 5. 1984.

(2.) THE brief case of the petitioner is that the petitioner imported the Laser Press Facsimile equipment in May 1984 and the same was assessed by the Assistant Collector, customs as an item chargeable to duty under Customs Tariff heading 84. 35 and the petitioner paid the duty of rs. 80,59,513. 80. But according to the Assistant Collector, the above equipment is in the nature of transmission and the reception apparatus and wireless equipment and hence decided to assess the goods under item 85. 15 CTA read with 68 CET since the equipment imported was capable of working both on carrier lines and on wireless transmission and that there was a short levy of duty to the extent of Rs. 38,07,255 towards the difference between the original assessment and the assessment. In that regard, show cause notice dated 6. 8. 1985 was issued requiring the petitioner to make his representation in writing along with evidence if any, as to why the goods should not be assessed under item 85. 15 CTA read with 68 CET, and in case if the petitioner wish to be heard in person, would require to appear before the Assistant Collector on 12. 8. 1985 at

(3.) IN reply to the arguments, the learned senior counsel mr. R. Krishnamoorthy submits that a perusal of the impugned order shows that additional levy of duty refers only based on the register maintained by the customs Department. The impugned order demanding additional duty payable by the petitioner is without any order of adjudication. Even assuming that opportunity for personal hearing the show cause notice was given to the petitioner, still, it is obligatory on the part of the respondent to pass an order of adjudication. Only after such adjudication the demand can be made. Therefore, without any adjudication, merely because the register of the Customs Department shows a demand, it cannot be directed to be paid by the petitioner. The impugned order refers as follows:- Sub: Payment of Customs duty demand of Rs. 38,07,255/-Reg. ***** As per the duty demand register maintained by this Custom house, duty arrears of Rs. 38,07,255 (Rupees thirty eight lakhs seven thousand two hundred and fifty five only) with interest at the rate of 20% from December 1995 is payable by you. You are hereby directed to make the above payment of duty arrears and interest within 10 days of receipt of this letter. (Please note that if the amount of duty arrears and interest are not paid within the above period the department will be constrained to initiate recovery proceedings as provided under Sec. 142 of the customs Act)" From this, it is seen that basis for this letter is only that there is a demand in the register maintained by the Customs House. There is no mention about the date on which the adjudication that the petitioner is liable to pay the additional duty of Rs. 38,07,255/- (specified in the impugned order) was made. IN the absence of any such adjudication, such a demand cannot be made. Therefore, inasmuch as the impugned order does not show that it is based upon any of the adjudication, the impugned order is liable to be quashed. IN the result, the writ petition succeeds and the same is allowed as prayed for. Considering the number of years the matter is pending, both the parties agreed that they will settle of the matter within one month and also agreed to fix a date of hearing of the petitioner to appear before the respondents and submit his reasons. Accordingly, the date of hearing of the petitioner before the respondents is fixed as 30. 8. 2004. The petitioner shall appear before the respondents on 30. 8. 2004 and submit his objections if any, failing which orders may be passed by the respondents based on merits without any further notice. The petitioner is at liberty to file his objections on or before the date of hearing. .