TaxTMI 
TaxTMI 
2015 (6) TMI 332
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....ority, 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. 2. 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 petition....
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....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. 6. On noticing the said judgment, this Court does not find that any quarrel can be made over the proposition laid down therein. Sub-section (1) of Section 18 of the Customs Act bestowed the power on the authority to provisionally assess the duty on the imported goods and may direct the importer to furnish such security as the said authority deems fit for payment of deficiency between the duty finally assessed and the duty provisionally assessed. Sub-secti....
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....*****************" 11. Once the statute has vested a discretion in the proper officer, the scope of judicial review by a Court is limited to examining as to whether the discretion so vested in the authority has been exercised in accordance with the provisions of the statute. The Court may intervene in a case where the authority refuses to exercise discretion directing such authority to exercise the discretion vested in it. However, while examining as to whether the discretion has been validly exercised or not the Court cannot undertake an exercise of substituting its own discretion, except in a case where it is found that the so-called exercise of discretion was either mala fide or coloured by collateral consideration. 12. I....
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.... assessment) Regulations, 1963, it is hereby directed that you shall execute a bond in Customs Series Form No. 3 in an amount of Rs. 20314534/- being the amount equal to the difference between the duty that may be finally assessed and provisional duty. It is further directed that you shall deposit by way of a challan with the proper officer/the undersigned, the sum of Rs. 40620907/- being 20% of the provisional duty in terms of Regulation 2 ibid. In terms of Regulation 4 of the said Regulations, it is directed that you shall furnish bank guarantee issued by any nationalised bank for the balance amount of differential duty i.e. Rs. 16251627/- (Rs. 20314534/- Rs. 40629077- = Rs. 162516627/-) in favour of the President of India through the ....
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....ing the regulations, the regulation cannot have a paramount impact upon the substantive statute. It would be a different thing where the power is circumscribed to be exercised in the manner to be provided in the subordinate legislation. It is clearly discernible from Regulation 2 thereof that where the provisional assessment made by the proper officer, the importer is required to pay maximum 20% of such provisional duty as assessed together with certain conditions as to the surety and/or security provided under Regulation 4 thereof. 10. This Court cannot accept the submission of Mr. Saraf that the said regulations have its applicability at the pre-stage of provisional assessment and not at the stage of provisional assessment. Such i....