TaxTMI 
TaxTMI 
2020 (10) TMI 1142
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....ts agents, officers and servants to forthwith release the goods imported by the Petitioner by accepting the price of the goods indicated in the invoice and declared in the Bill of entry, for the purposes of valuation in Customs law; (c) That this Hon'ble Court be pleased to issue a writ of mandamus or any other appropriate writ, direction or order commanding the Respondents to pay to the Petitioner, the aggregate of ascertainable costs and losses suffered by the Petitioner, including the detention charges and the CFS ground rent charges, which arose due to the gross inaction and culpable actions of Respondent No.4 and other concerned Officers; (d) That, pending the hearing and final disposal of this writ petition, this Hon'ble Court be pleased to stay the operation of the impugned Standing Orders." 3. The Petitioner is in the plastics industry with a variety of applications in moulded furniture, storage and material handling products, XF films and products, performance films, industrial moulded products, protective packaging products, composite plastic products, plastic piping system and petrochemicals and offers vide range of plastic products in India manufactured at its vari....
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....respondents for provisional release of the goods in accordance with Section 18 of the Customs Act, 1962. [3] Mr. Jetly may obtain instructions. [4] This interim application will be taken up for consideration on 24th September, 2020." 9. Thereafter, the Revenue has filed its affidavit in reply notarized on 23rd September, 2020, inter alia, stating that pursuant to the letter dated 27th August, 2020 whereby the Petitioner had requested for waiver of show cause notice and personal hearing with a request to load the value as per PLATT rate by giving 10% variation as per Standing Order No.7439/99 dated 3rd December, 1999 and subsequent Standing Order No.44/2016 dated 8th July, 2016, the bill of entry No. 8389492 dated 6th August, 2020 filed by the Petitioner was adjudicated by the Additional Commissioner of Customs, Nhava Sheva on 4th September, 2020, rejecting the declared value under Section 12 of the Customs Valuation Rules and re-determined the same at Rs. 2.63 crore with a fine of Rs. 8 lakhs under Section 125 of the Customs Act and penalty of Rs. 80,000/- under Section 112 (a) of the Customs Act. By the said affidavit, it was also stated that the bill of entry has been finall....
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....Respondents submit that if the Petitioner is aggrieved by the orderin-original, he may prefer appeal as provided under Section 128 of the said Act. [4] However, we express no opinion today. [5] Stand over to 6th October, 2020." 12. By additional affidavit dated 1st October, 2020, Petitioner has brought on record the order in original dated 4th September, 2020. 13. When the matter was listed on 6th October, 2020, this Court passed the following order:- "[1] Heard learned counsel for the parties. [2] We have also perused our previous order dated 29.09.2020. [3] Though Petitioner has filed an additional affidavit, for the moment we are concerned only with the order in original which was brought to our notice on the previous date by Mr. Pradeep Jetly, learned senior counsel for the Respondents. [4] On a perusal of the order in original, we find that the date of the order is mentioned as 04.09.2020 and the date of issue is mentioned as 24.09.2020. But we find that the adjudicating authority had signed the order on 24.09.2020, which prima facie means that the order was passed on 24.09.2020. However, in paragraph 6 of the affidavit in reply filed by the Commissioner, it is m....
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....ss the following order:- (i) I reject the declared value (unit price USD 600 PMT) U/S 12 of CVR 2007 and re determine the same as USD 666.5 PMT. The B/E be re-assessed accordingly and the importer shall pay the differential duty fore with. (ii) I confiscate the goods 520 MT PVC resin suspension grade 1230 p covered by bill of entry No. 8389492 dated 06.08.2020 having re-determined value of Rs. 2.63 crore (Two Crore Sixty three lac) U/S 111 (m) of Customs Act, 1962. However, I give option to redeem the same on payment of redemption fine of Rs. 8,00,000/- (eight lac only) under Section 125 of Customs Act, 1962. (iii) I also impose penalty of Rs. 80,000/- (Eighty Thousand only) under Section 112 (a) of Customs Act, 1962." (11) I say that a draft of the typed speaking order with discussion and finding was put up on 17.09.2020. I say that after due corrections, fair copies of the Order-in-Original were signed on 24.09.2020 and issued on 24.09.2020 itself under DIN No.20200978NW00002059EI." 18. The statement made in the aforementioned paragraphs quite surprises us to say the least. To say that on 4th September, 2020, the operative part of the order was recorded and that the reas....
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....eted on 9th September, 2020 and that he has issued a speaking order under Section 17(5) of the Customs Act on 24th September, 2020 which is well within the 15 days period from the date of 9th September, 2020. Paragraph 13 of the said Affidavit is quoted as under: "13:-I say that in the present re-assessment under Section 17(4) of the said Act, was been completed by the proper officer on 09-092020 and the competent adjudicating authority [Deponent] has issued speaking order under Section 17(5) of the said Act, on 2409-2020 which is well within the period of 15 days from the date of re-assessment, provided under Section 17(5) of the said Act." 23. At this stage, for the sake of convenience, we reproduce section 17 of the Customs Act as under:- "17- Assessment of duty - (1) An importer entering any imported goods under section 46, or an exporter entering any export goods under section 50, shall, save as otherwise provided in section 85, sell-assess the duty, if any, leviable on such goods. (2) The proper officer may verify the entries made under section 46 or section 50 and the self-assessment of goods referred to in subsection (1) and for this purpose, examine or test any impo....
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.... ought to have informed the Court about the status of the adjudication process and ought to have sought the leave of the Court for issuance of the order-in-original. It needs no reiteration that an officer conferred adjudicatory authority exercises quasi-judicial powers while passing adjudication order. He has to discharge his duties in a fair, proper and judicious manner befitting his status as an adjudicating authority. We say this much and no more. 25. Even a bare perusal of the file which has been produced before the Court clearly shows that the order-in-original was signed on 24th September, 2020. It is only the date on which the order is signed, is the date on which the order is passed. Revenue authority cannot at their own whim and fancy, split an order viz. first pass the operative part of the order without any discussion or finding or reasons and then pass the speaking order with discussion and findings and conveniently choose dates such as in this case, where the operative part of the order is claimed to have been passed without discussion or findings or reasons on 4th September, 2020 whereas the order with discussion and findings in respect of the same operative order w....
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....7(5) of the Customs Act provides that 'where any reassessment done under sub-section (4) is contrary to the self-assessment done by the importer or exporter regarding valuation of goods, classification, exemption or concessions of duty availed consequent to any notification issued thereof under this Act and in cases other than those where the importer or exporter, as the case may be, confirms his acceptance of the said re-assessment, within fifteen days from the date of re-assessment of the bill of entry or the shipping bill, as the case may be.' 2. It has been observed that officers exercising the powers under the above mentioned sub-section are not issuing a speaking order in each and every case particularly where the importer or exporter, as the case may be, does not confirm his acceptance of the reassessment. It may be appreciated that an importer or an exporter has an inalienable right to know the reasons for loading of value, change of classification, any decision regarding entitlement to an exemption notification etc. Omission to issue speaking orders in matters of re-assessment, may not prejudicially affect the right of the importer or exporter to appeal as such, but neve....
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....quasi judicial authority or even an administrative authority affecting the rights of parties, must speak. It must not be like the inscrutable face of a sphinx. In paragraph 47 the Supreme Court summarised its discussion. The relevant sub-paragraphs of the said summary are quoted as under:- "47. Summarising the above discussion, this Court holds: (f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice. (i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. (n) Since t....