TaxTMI 
TaxTMI 
2002 (10) TMI 104
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.... the goods. According to the learned Senior Counsel for the petitioners, the respondents are bound to provisionally assess the goods and allow the importer to clear the same in accordance with the provisions of Section 18 of the Customs Act. It was submitted that though the petitioners were related, their business was different, the invoice showed different places of purchase and therefore, the import cannot be 'clubbed' together. It was also submitted that the goods were "perishable or hazardous goods" as per the Schedule to the Notification under Section 110 of the Customs Act. 3.The learned Senior Counsel relied on two judgments : (1) Union of India v. Tarachand Gupta [1983 (13) E.L.T. 1456 (S.C.)] and (2) Collector of Customs v. Ganesh Raja Organisation [2000 (122) E.LT. 19 (Mad.)]. 4.In the Supreme Court judgment, the importer had imported goods which arrived in two consignments by two different ships and on examination the Customs authority found that they constituted 51 sets of "Rixe Mopeds complete in a knocked down condition". The following paragraph was relied on by the learned Senior ....
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....and scooters from importing motor cycles and scooters in C.K.D. condition. Remark (ii) containing that prohibition had nothing to do with entry 295 which did not contain any limitations or restrictions whatsoever against imports of parts and accessories. ... That being so, if25. an importer has imported parts and accessories, his import would be of the articles covered by entry 295. The Collector could not say, if they were so covered by entry 295, that, when lumped together, they would constitute other articles, namely motor cycles and scooters in C.K.D. condition. Such a process, if adopted by the Collector, would mean that he was inserting in entry 295 a restriction which was not there. ... That would be tantamount to the Collector making a new entry in place of entry 295 which must mean non-compliance of that entry and acting in excess of jurisdiction during the course of his enquiry even though he had embarked upon the enquiry with jurisdiction. In our view that was precisely what the Collector did. This is, therefore, not one of those cases where, between the two competing entries the statutory authority applied one or the other, though in error, and where a civil Court c....
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....of goods. 8.The learned Additional Solicitor General, however, would submit that in the present case, the petitioner cannot claim provisional assessment of duty as a matter of right. Mandamus can be issued only when there is legal right and a corresponding legal duty. The imports under the two bills of entry are part of a 'design' calculated to evade payment of customs duty. It cannot be pure chance, that the goods imported by the two petitioners meshed with each other to form complete sets. According to the learned Additional Solicitor General, the investigation is in motion and if now a direction is given to release the goods it would scuttle the entire investigation process. It was also submitted that the petitioners have not co-operated with the enquiry and reference was made to Paragraph Nos. 6, 12 and 13 in the counter to show that there was a deliberate intention to evade duty. The Additional Solicitor General would submit that while time limit may be fixed for investigation, the goods cannot be directed to be released. 9.An admitted fact in this case is that the duty payable by the petitioners if they import the VCDs as fully assembled would be higher than the duty payabl....
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....ese details are gathered then retention of the goods in the warehouse is not necessary, especially when the grounds for retaining the goods is not because the import of the spare parts is prohibited. The reason what the respondents perceive is a "common design". 13.It was urged on behalf of the petitioner that they are perishable goods and that these goods come under the heading of "perishable or hazardous goods". In the first place it is difficult to accept that these spare parts or components are perishable. The notification reads thus : "Seizure of Perishable or Hazardous Goods - Section 110(1A) of Customs Act. - In exercise of the powers conferred by sub-section (1A) of section 110 of the Customs Act, 1962 (52 of 1962), the Central Government, having regard to the perishable nature, depreciation in the value with the passage of time, constraints of storage space and valuable nature, mentioned in the Schedule hereto annexed, hereby specifies the said goods for the purposes of that sub-section." 14.It is clear that they are classified as "perishable or hazardous goods". (a) because they are perishable in nature, or (b) &nb....