TaxTMI 
TaxTMI 
1982 (5) TMI 45
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....respect of the said partshipment. Petitioner made reference in the same letter to the Notice No. 40.53/72-AP issued under Section 142 of the Customs Act regarding the recovery of Rs. 86,868/- from the petitioner towards different Shipping Bills of 1970 and submitted that the said recovery is illegal and irregular. Respondent No. 1 however, issued the notice dated 19th June, 1974 hereinafter called the impugned order, whereby it had been ordered that, in view of the failure of the petitioner to pay the said amount of Rs. 86,868/- being the export duty against four Shipping Bills of 1970, the aforesaid amount was to be deducted from any money owing to the petitioner. The four Shipping Bills referred to in the impugned order relate to the shipment of iron ore made by the petitioner by the vessel m.v. Schouwen which was dispatched in November, 1970. The said shipment Bills were cleared on basis of ad hoc and provisional fee contents declared in the Continuity Bond executed by the petitioner. Samples or the iron ore had been taken both by the Customs Authorities and the petitioner and sent to the Government laboratory at Bombay and to the private laboratory of M/s. Italab (Goa) Pvt. Ltd....
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....e condition it is exported. Such iron ore exported contains moisture and as such, it is necessary to determine the Fe contents in respect of the moist iron ore and it is not enough to rely on the analysis of only the dry ore. The percentage Fe contents determined on dry basis cannot be taken as percentage of Fe contents in respect of iron ore exported which is moist. The percentage of Fe content in the moist iron ore is necessarily lower than the percentage determined by dry basis. The assessment done by the Customs Authorities is based on the percentage of Fe contents on dry basis and therefore, incorrect and illegal. It is also the case of petitioner that the action of the Respondent No. 1 is not clearing the Shipping Bill submitted on 25th June, 1974 on basis of the impugned order is illegal, as there was no money owing to the petitioner which could be adjusted by way of deduction as contemplated in Clause (a) of Section 142(1) of the Customs Act, 1962. 4. Placing reliance in the case of 'K.T. Moopil Nair v. State of Kerala' A.I.R. 1961 S.C. 552; Assistant Collector, Calcutta v. National Tobacco Co. of India Ltd. 1978 E.L.T. (J 416), Smt. Maneka Gandhi v. Union of India A.I.R. ....
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....le conclusion is that, in fact, the said order was made in violation of the principles of natural justice and consequently, null and void. In Swadeshi Cotton Mills case, their Lordships of the Supreme Court after observing that "The further question to be considered is : What is the effect of non-observance of this fundamental principle of fair play ? Does the non-observance of the audi alteram rule, which in the quest of justice under the rule of law, has been considered universally and most spontaneously acceptable principle, under an administrative decision having civil consequences, void or viodable"? Concluded that the effect is to vitiate such a decision and to turn it null and void. Similarly, in the case of Maneka Gandhi (AIR 1978 S.C. 597) and S.L. Kapoor v. Jagmohan (AIR 1981 S.C. 136), it was observed that the Supreme Court had consistently taken the view that a quasi-judicial or an administrative decision rendered in violation of the audi alteram partem rule, wherever it can be read as an implied requirement of law, is null and void. I have, therefore, no doubt in accepting as correct the above submission of Mr. Dessai, and in holding as a result that the order dated 19....
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.... analysis of sample dried at 105°C". It was not denied by Mr. R. Sardesai, learned Central Government Standing Counsel, that there is a recognised practice throughout the world to ascertain the iron contents in ore in moist condition and that the duty is paid on the ore weighed in moist condition. Therefore, it appears to me that the contention of Mr. Dessai to the effect that for calculating the liability to pay duty arising on the date of the export, it is essential to find out the iron contents on that date and in moist condition is entirely correct. 7. It was further submitted by the learned Advocate for the petitioner that Respondent No. 1 based the assessment on the certificate Exh. D wherein it is stated inter alia that the analysis done on a sample dried at 105°C showed the iron contents at the percentage of 63.60%. It was also urged that the said certificate was totally misconstrued, discarding relevant factors such as the moisture. Exh. D is the certificate issued by M/s. Italab (Goa) Pvt. Ltd. It shows that on analysis of the sample of the iron ore to be exported by the m.v. Schouwen, it was found that the average moisture determined at 105°C was of 6.85% an....