RASHMI METALIKS LTD. Vs. UNION OF INDIA

JUDGEMENT

(1.) THE bill of entry submitted by the petitioner for import of coke breeze could not be accepted by the Customs Authority and drew a sample which is sent to the laboratory for testing whether the imported goods pertains to coke breeze or metallurgical coke. According to the Customs Authority, the import of metallurgical coke or the coke breeze is permissible against the export of hot metal/pig iron. The department says that the metallurgical coke or coke breeze are two distinct and separate items and have been put into different categories. Admittedly the report from the laboratory has not been received by the department as yet. Therefore, there is still an uncertainty over the description of the material whether it is metallurgical coke or the coke breeze. The importer applied for provisional assessment and provisional release before the authority under Section 18 of the Customs Act. Subsequent to the filing of the writ petition the authority has provisionally assessed and communicated the same to the petitioner requiring him to deposit the full differential amount as well as a P.D. Bond covering the same.

(2.) ACCORDING to the petitioner though the authority is vested with discretion under Section 18 of the Customs Act but such discretion should be exercised reasonably, rationally and in consonance with the provision regulating such discretion. In particular it is submitted that Regulations 2 and 4 of Customs (Provisional Duty Assessment) Regulation, 2011 provides for the conditions allowing provisional assessment and surety or security by way of a bond. The petitioner says that the authority cannot direct the petitioner to pay the entire duty as provisionally assessed which offends Regulation 2 of the Regulation wherein the importer is obliged to deposit 20% of the differential duty of the goods and the rest amount is to be secured in the manner as provided under Rule 4 of the said Regulations.

(3.) BY drawing an inspiration from a division bench judgment of Gujarat High Court in case of Platinum Investment Services Corporation v. Union of India reported in : 2010 (257) E.L.T. 161 (Guj.), Mr. Saraf would contend that once the authority has exercised the discretion under sub -section (1) of Section 18 of the said Act, the Court should not interfere by substituting its own discretion in exercise of the power of judicial review.