TaxTMI 
TaxTMI 
1975 (6) TMI 32
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....5th October, 1972 whereby the respondent was called upon to show cause why a writ in the nature of mandamus should not be issued directing the respondent to withdraw and/or to cancel the order dated 31st December, 1971 made by him assessing and levying duty under Section 17 of the Customs Act, 1962 and also why a writ in the nature of certiorari should not be issued setting aside, cancelling or quashing the said order so that conscionable justice might be administered by setting aside, cancelling and quashing the said order. An interim stay was granted staying the operation of the said impugned order, upon the petitioner furnishing security to the satisfaction of the Registrar by way of bank guarantee to the extent of Rs. 1,50,000 in the manner as provided in the said Rule NISI. 4. The facts, shortly, are that the vessel "Loyal Ivory" of which the petitioner was the agent entered the port of Calcutta on or about 23rd August, 1969. On 30th August, 1969 the Assistant Collector of Customs, Import Noting Department, wrote to the petitioner as follows : "Gentlemen, Sub: Duty on unconsumed portion of Colombo Stores S.S. LOYAL IVORY arrived 23-8-1969. The above mentioned vessel v....
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....-1969. x x x A list has been prepared on the basis of difference between the arrived store list at Calcutta and the departure store list from Cochin for all the items of stores except fuel oil. For the purpose of duty, the entire quantity of fuel oil on arrival at Calcutta has been taken into account in absence of Engine room log book, and the same has been subjected to duty at the highest rate in absence of Technical data as per tariff. The total duty amount comes of Rs. 2,74,456.46. You are, therefore, requested to deposit the said amount of Rs. 2,74,456.46 (Rupees Two lakhs seventy four thousand four hundred fifty six and paise forty six only) in this Custom House treasury within 15 days hereof being the duty on unconsumed portion of stores uplifted at Colombo. A copy of the said list so prepared and assessed is forwarded herewith for your perusal and payment of duty involved. Seal of RECEIVED 3-JAN 1972 Yours faithfully, Sd/- B. Nanda (B. NANDA) 3/12/71 Assistant Collector of Customs for Export Gr. I." 8. The petitioner protested against the said order of assessment and intimated that by their letter dated 2nd September, 1971 they enclosed the....
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....ine Department, Calcutta District." 11. It appears that the petitioner wrote to their principals intimating them that the customs authorities were asking for certain documents to be produced but the attitude of the principals was to the effect that it was impossible for them to arrange such certificate to be issued by Ceylonese Customs after the vessel had completed the voyage for more than 30 days inasmuch as no Government authorities would ever keep such records for such a length of time. They advised the petitioner to repudiate such requirement and insisted that the claim was invalid as the notice of claim was not submitted within six months as required by law. 12. Mr. Mukherjee appearing on behalf of the petitioner contends that Section 28 of the Customs Act 1962 is applicable in the facts and circumstances of this case and, accordingly, notice for levying the duty not having been served on the petitioner in terms of the said section, the claim has become time barred and the Customs authorities could not have any right to levy any duty in the manner they have done. Section 28 of the Customs Act 1962 provides as follows :- "28. Notice for payment of duties not....
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....purpose of assessing duty under sub-section (2), the proper officer may require the importer, exporter or any other person to produce any contract, broker's note, policy of insurance, catalogue or other document whereby the duty leviable on the imported goods, or export goods, as the case may be, can be ascertained, and to furnish any information required for such ascertainment which it is in his power to produce or furnish, and thereupon the importer, exporter or such other person shall produce such document and furnish such information. (4) Notwithstanding anything contained in this section, imported goods or export goods may, prior to the examination or testing thereof, be permitted by the proper officer to be assessed to duty on the basis of the statements made in the entry relating thereto and the documents produced and the information furnished under sub-section (3); but if it is found subsequently on examination or testing of the goods or otherwise that any statement in such entry or document or any information so furnished is not true in respect of any matter relevant to the assessment, the goods may, without prejudice to any other action which may be taken under this....
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....p; ** (d) all duties leviable on any stores consumed in such conveyance, and all charges and penalties due in respect of such conveyance or from the person-in-charge thereof have been paid or the payment secured by such guarantee or deposit of such amount as the proper officer may direct; (e) ** ** ** (f) ** **  ....
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....ion. 17. It is to be noted that under the provisions of Section 42 of the said Act the vessel cannot leave the Customs' station until a written order has been issued by the proper Customs Officer to the effect that all duties leviable on the stores consumed in such conveyance and all charges and penalties due in respect of such conveyance or from the person in charge thereof had been paid or the payment had been secured by such guarantee or deposit of such amount as the Customs Officer might direct. In other words, the vessel cannot be allowed to leave the Customs' port until the duties or penalties, as the case may be, would be paid or duly provided for either by written guarantee or by deposit of a suitable amount, as the case may be, and after a written order to that effect would be issued by the appropriate Customs Officer. It is only when the provision of Section 42 is complied with then only a vessel can leave the customs' port. That being so, the expression "when any duty has not been levied" in Section 28 of the said Act cannot relate to original assessments but must relate to levying of further duties when it would be found that such duties ought to have been levied ....
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....sion Bench case of S. Venkatesan v. Nihal Chand Agarwalla reported in AIR 1962 Cal. 258. That case was decided under Sections 39 and 190-A of the Sea Customs Act, 1878. There the facts were that the Customs Authorities assessed the customs duty which was paid by the clearing agents. On the base thereof the delivery was sought to be taken but some part of the consignment was not traceable and, accordingly, a short landing certificate was issued by the Commissioners for the Port of Calcutta is the prescribed form. On the strength of the said certificate an application was made by the Clearing Agents for refund of proportionate customs duty. The Customs Authority thereupon issued a refund order which entitled the respondent firm to receive back a sum of Rs. 12,855. The said refund order was quashed in due course. Thereupon the Additional Collector of Customs issued a notice to the respondent firm by which it was proposed to reopen the case for review under Section 190-A of the Sea Customs Act with a view to recover the amount, which the custom claimed had been erroneously refunded to the respondent. The respondent challenged the jurisdiction of the customs authority to re-open the pro....