2016 (10) TMI 1089

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....round the material already available on record. 2. By way of this writ petition, the petitioner, said to be a dealer of betel nuts, has stated grievance that despite the order dated 5-11-2015 of this Court in WP(C) No. 329 of 2014, the concerned authority has not considered the preliminary issues and the matter is sought to be taken up for final hearing without the decision of preliminary issues by the competent authority. 3. The petitioner has further pointed out that the Assistant Commissioner of Customs has purportedly sent a response to the letter of his counsel on 10-5-2016 (Annexure-6) and therein, the decision of preliminary issues raised is sought to be indicated but in the last, the said Assistant Commissioner has state....

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....in case the petitioner still remained aggrieved, he may be granted liberty to come to this Court again. Till then, the matter may not be allowed to proceed on merit. Mr. R. Deb Nath learned counsel does not have any objection to the submission of Mr. V.K. Jindal, learned Sr. counsel as the same does not seem to be unreasonable. In that view of the matter we dispose of this writ petition with liberty to the petitioner to raise all the preliminary issues as raised here in this writ petition which shall be considered first by the Customs authorities before deciding on merit. However, in case of survival of any further grievance the petitioner may again come to this Court. Till then, there shall be no decision on merit by the customs authority....

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....else. It is entirely unacceptable a suggestion that the preliminary issues may be decided by some other authority lower in hierarchy and the matter on merits may be decided by the higher authority. Such bifurcation of the decision making process is neither envisaged by law nor contemplated by the order dated 5-11-2015. 10. The letter dated 10-5-2016 (Annexure-6), in the given set of circumstances, could only be construed as being that of an opinion of the Assistant Commissioner and not the considered decision on the preliminary issues as required by the order dated 5-11-2015, which has to be taken by the competent authority, who would ultimately deal with the matter on merits, if occasion so arise, i.e., the Additional Commissioner in....