TaxTMI 
TaxTMI 
2005 (7) TMI 115
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.... Nos. 5701, 5702 and 5703 of 2005 for a writ of mandamus to direct provisional assessment of the goods under Section 18 of the Customs Act, 1962 while releasing the goods pertaining to Bill of Entry Nos. 695193, dated 7-10-2004, 702063 dated 20-10-2004 and 702064, dated 20-10-2004. 3. The appellant is a manufacturing unit engaged in the manufacture of iron and steel products at Chennai. For the use in the said unit the appellant imported non-alloy steel of 431.700 MT which was cleared under Bill of Entry No. 692343 dated 1-10-2004 with a duty concession under Notification No. 24/2004, dated 1-3-2002. However, when another consignment was imported against Bill of Entry No. 695193, dated 7-10-2004, and Bills of Entry Nos. 702063 and 702064, dated 20-10-2004 with a concessional duty relief under the aforesaid Notification No. 24 /2002, dated 2-3-2002 the goods were detained by the Customs Department. 4. There is a controversy between the appellant and the department as to whether the imported goods are eligible for concessional duty or not. It may be mentioned that "seconds and defective goods" are ineligible for the concessional duty, vide Government of India Customs Notification N....
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....ut to Rs. 45.13 lakhs. Similarly, the goods mentioned in Bill of Entry No. 695193 dated 7-10-2004 were found to be non-alloy Steel Slabs Seconds which attracts duty at 40% + 12% + 2% Education Cess. 9. It is further alleged in the counter affidavit that pending investigation by the Director of Revenue Intelligence, the goods of 485.11 MTS have been released provisionally detaining 325 MTS goods as security to safe guard the differential duty amount and adjudication liabilities as per the request of the petitioner. The differential duty comes approximately to Rs. 50 lakhs. 10. It is alleged by the department that this is a case of blatant mis-declaration of description of the goods with a view to evade huge amount of duty at higher rate. A show cause notice has been issued proposing to take action under Section 111(m) and 112 (a) of the Customs Act, 1962 in connection with the above imports and the appellant has to face the adjudication proceedings. It is alleged that the request for the re-test by a different agency is not permissible. It is further alleged that there is no provision entitling the appellant to get samples of the detained goods. It is further alleged that both the....
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.... 13th of October, 2004 and has submitted a report (which was communicated to the appellant) that the materials in question were "non-alloy steel slabs seconds". The appellant made two objections to the said report. Firstly, that the thickness of the material was not measured in the right way, and secondly it was only based on visual inspection. 16. In our opinion, the appellant can cross-examine the chemical examiner of the National Metallurgical Laboratory in connection with these two objections, but he cannot claim any right to draw samples from the detained goods, since there is no provision in law permitting taking of such samples. 17. The learned counsel for the appellant relied on the decision of the Supreme Court in Commissioner of Customs, New Delhi v. Punjab Stainless Steel Industries, 2001 (132) E.L.T. 10 in support of his contention that the petitioner has a right to take samples. We have carefully perused the said decision. In paragraph - 5 of the said decision the Supreme Court has observed :- "The demand of the respondent for retesting of samples was declined but in order to obviate any unfair treatment to the respondent, the Commissioner gave option to the respon....
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....to the rate of duty of customs or to the value of the goods for the assessment and, therefore, appeal under Section 130E of the Act is not competent. Learned counsel contends that if the appellant was aggrieved by the order of the Tribunal, it ought to have taken recourse to the remedy of reference as provided in Section 130 of the Act and further if aggrieved from the order made on reference, it could approach this Court by filing a petition under Article 136 for grant of leave. Learned Attorney General, without going into the question of maintainability, submits that the present appeal may be treated as a special leave petition and in support placed reliance upon Commissioner of Central Excise and Customs v. Venus Castings (P) Ltd. [2000 (117) E.L.T. 273 (S.C.) = 2000 (4) SCC 206] where rejecting the similar objection about the maintainability of the appeals under the Central Excise Act, the appeals were directed to be converted into special leave petitions and dealt with on merits. In the circumstances of this case, and also considering that this matter has been pending in this Court for nearly two years, we convert this appeal into special leave petition, grant leave and procee....
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....mical Examiner. Thus, the first reason given by the Tribunal for coming to the conclusion that there has been violation of the principles of natural justice is not sustainable". 18. A careful perusal of the paragraph - 5 of the said decision of the Supreme Court shows that it does support the case of the appellant, rather paragraph - 5 negatives the claim of the appellant. It has been stated in paragraph - 5 of the said decision that the assessee can cross-examine the chemical examiner if it is aggrieved against his findings. There is nothing in paragraph - 5 which states that the petitioner has a right to take samples. The Supreme Court has clearly negatived the allegation that there is violation of principles of natural justice in such a situation. In the present case also the department has stated that it is willing to give the appellant an opportunity to cross-examine the chemical engineer. Hence, there is no question of violation of principles of natural justice in the present case. 19. The learned counsel for the appellant then relied on the decision of the Supreme Court in Bombay Oil Industries Pvt. Ltd. v. Union of India, 1995 (77) E.L.T. 32 in which it has been observed ....
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....f Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Norton [1951 AC 737 at page 761], Lord Mac Dermot observed : 'The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J. as though they were part of an Act of parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge'. In Home Office v. Dorset Yacht Co. [1970 (2) All ER 294] Lord Reid said, 'Lord Atkin's speech ? Is not to be treated as if it was a statute definition it will require qualification in new circumstances'. Megarry, J. in (1971) 1 WLR 1062 observed: 'One must not, of course, construe even a reserved judgment of Russell L.J. as if it were an Act of Parliament'. And, in H....