TaxTMI 
TaxTMI 
2020 (10) TMI 1142
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....riate writ, direction or order commanding the Respondents its 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 ....
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....it returnable on 6th October, 2020. [2] Now the present interim application has been filed seeking interim direction to the 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 a....
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....inal or to take instructions as to the future course of action which the Petitioner would like to pursue if aggrieved by the aforesaid order. [3] At this stage, Mr. Jetly, learned Sr. Counsel for the 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....
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....at below PLATT price and Standing Order on the issue. Had it not been detected by the Out of Charge Officer, it would have remained unnoticed causing loss to the exchequer. In view of this, I hold that it is a case of mis-declaration of value to evade duty to the tune of Rs. 8.15 lac (approx). Accordingly, I pass 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 ....
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....y assessed on 9th September, 2020 as per adjudication order. We are unable to comprehend as to how after an order is signed on 24th September, 2020 that an assessment could be done on 9th September, 2020. 22. As if that was not enough, in paragraph 13 of the said affidavit, it is stated that the re-assessment under Section 17 (4) of the Customs Act, was completed 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....
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....ot help but say that the entire conduct of the officer suggests a complete non-application of mind which to say the least must be deprecated. We feel that this entire saga was wholly avoidable. When the Court had issued notice on 10th September, 2020 and had passed the order on 22nd September, 2020 stating that the interim application would be taken up for consideration on 24th September, 2020, the concerned officer 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. fi....
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....hat such order should contain all the details of the issue, clear findings and a reasoned order. 28. Not only that, the Government of India vide its Instruction No.7 dated 5th April, 2017 with reference to Section 17(5) of the Customs Act, has high lighted the need to pass a speaking order and to ensure compliance with the provisions of the Customs Act. The said Circular issued by the CBIC is also quoted as under:- "Section 17(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....
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....51, Air India Ltd. v. Cochin International Airport Ltd. (2000) 2 SCC 617, B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd. (2006) 11 SCC 548 and Jagdish Mandal v. State of Orissa (2007) 14 SCC 517" 31. Also the decision of the Supreme Court in the case of Kranti Associates Pvt. Ltd. and another v/s Masood Ahmed Khan and others cited in (2010) 9 SCC 496 also highlights this point. The Supreme Court in paragraph 15 opined that the face of an order passed by a 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. Th....