High Court Kerala High Court

M/S.Radha Krishna Trading … vs The Commissioner Of Customs on 22 November, 2010

Kerala High Court
M/S.Radha Krishna Trading … vs The Commissioner Of Customs on 22 November, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 33810 of 2010(A)


1. M/S.RADHA KRISHNA TRADING COMPANY,
                      ...  Petitioner

                        Vs



1. THE COMMISSIONER OF CUSTOMS,
                       ...       Respondent

2. THE ASSISTANT COMMISSIONER OF CUSTOMS,

                For Petitioner  :SRI.P.RADHAKRISHNAN (1)

                For Respondent  :SRI.JOHN VARGHESE,SC,CEN.BOARD OF EXCIS

The Hon'ble MR. Justice ANTONY DOMINIC

 Dated :22/11/2010

 O R D E R
                                                                      'C.R.'

                       ANTONY DOMINIC, J.

             ```````````````````````````````````````````````````````
             W.P.(C) Nos.33810, 34221, 34369
                           & 34662 of 2010
             ```````````````````````````````````````````````````````
         Dated this the 22nd day of November, 2010

                            J U D G M E N T

Petitioners are importers of betel nuts and their

consignments discharged at the Port of Cochin are awaiting

customs clearance. While so, these writ petitions have been

filed seeking a direction to the respondents to provisionally

assess the goods imported by the petitioners applying the

provisions of the Customs Act, 1962 and the Customs

(Provisional Duty Assessment) Regulations, 1963, and to

release the goods.

2. The contention raised by the Standing Counsel for

the respondents is that the respondents are prepared to

assess duty under Section 17 of the Customs Act, 1962, and

that the petitioners are free to appear before the proper officer

of the Customs Department, who will hear the petitioners and

pass orders of assessment and that speaking orders will also

be issued to the petitioners soon thereafter.

W.P.(C) No.33810/10 & connected cases

: 2 :

3. Section 18 of the Customs Act provides for

provisional assessment of duty. This provision permits

provisional assessment of duty only when;

(a) where the proper officer is satisfied that

an importer or exporter is unable to produce any

document or furnish any information necessary for

the assessment of duty on the imported goods or

the export goods, as the case may be;

(b) where the proper officer deems it

necessary to subject any imported goods or export

goods to any chemical or other test for the purpose

of assessment of duty thereon;

(c) where the importer or the exporter has

produced all the necessary documents and

furnished full information for the assessment of duty

but the proper officer deems it necessary to make

further enquiry for assessing the duty.

4. As far as provisional assessment under the

W.P.(C) No.33810/10 & connected cases

: 3 :

Regulations, 1963 is concerned, Regulation 2 provides the

circumstances justifying provisional assessment. That

Regulation states that where on account of any of the

grounds specified under Section 18(1) of the Customs Act,

the proper officer is unable to make a final assessment of

the duty on the imported goods, he shall make an estimate

of the duty that is most likely to be levied and if the importer

executes a bond for an amount equal to the difference

between the duty that may be finally assessed and the

provisional duty and deposits with the proper officer such

sum not exceeding 20% of the provisional duty, the proper

officer may direct assessment of duty on provisional basis

and release goods on that basis.

5. In so far as the facts of these cases are

concerned, what is relevant is Section 18(1)(a) of the

Customs Act. A combined reading of this provision of the

Act and the Regulations show that these provisions have

relevance only in a situation where the proper officer is

W.P.(C) No.33810/10 & connected cases

: 4 :

unable to complete assessment when he is satisfied that

due to the inability of the importer or exporter to produce

any document or furnish any information necessary for the

assessment of duty on the goods involved. Therefore, the

inability of the proper officer to complete assessment of duty

is what is relevant. In these cases, the Customs

Department have expressed their willingness to complete

the assessment under Section 17 of the Customs Act and

they have no case that they need any document or

information to be produced by the petitioners to complete

assessment or that they are unable to complete assessment

for any of these reasons. On the other hand, the

petitioners contend that, for a meaningful adjudication

before the proper officer and to prove their case regarding

the correctness of the value declared by them, they have to

obtain documents from the port of export and that for that

purpose, they need time. According to the them, till they

obtain such documents and are ready to substantiate their

W.P.(C) No.33810/10 & connected cases

: 5 :

case before the proper officer, if the cargo is to remain in

the wharf, demurrage will be levied and to avoid such loss,

provisional assessment of duty should be done. Reference

was made to Rule 12 of the Customs Valuation

(Determination of Value of Imported Goods) Rules, 2007.

6. In my view, Rules do not permit provisional

assessment under Section 18 in a situation where the

importer wants to defer assessment for reasons which are

attributable to the importer. Section 18(1) of the Customs

Act does not make it mandatory on the proper officer to

make a provisional assessment. The use of the word “may”

indicates that it is the discretion of the officer to make

provisional assessment, if there are circumstances justifying

it. What is important to be noted is that this provision

incorporated in the statute is to be invoked in situations

where on account of the circumstances set out in Section 18

of the Act, the proper officer is unable to assess the

customs duty and not where assessment is deferred at the

W.P.(C) No.33810/10 & connected cases

: 6 :

request of the importer. Therefore, provisional assessment

as sought for by the petitioners is against the provisions of

the Act and the Regulations of 1963 and hence, cannot be

ordered. However, that does not mean that the proper

officer should not give the petitioners a reasonable

opportunity to produce documents substantiating their case

or that the adjudication shall not be meaningful or that he

can exercise his discretion arbitrarily and all that is to be

stated is that provisional assessment cannot be demanded.

7. In that view of the matter, the prayer sought to

direct the respondents to provisionally assess the cargo of

betel nuts imported by the petitioners cannot be granted.

8. However, I record the submission of the counsel

for the respondents that it will be open to the importers to

appear before the proper officer under the Act, and that

after hearing, an order of assessment will be passed on the

same day itself and that it will be open to the petitioners to

seek release of the cargo on that basis. I also record that

W.P.(C) No.33810/10 & connected cases

: 7 :

soon thereafter, speaking orders will be passed by the

respondents, enabling the importers to seek their remedies

against the assessments completed.

Writ petition is disposed of as above.

Sd/-

(ANTONY DOMINIC, JUDGE)
aks

// True Copy //

P.A. To Judge