CWP No.2659 of 2009 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.2659 of 2009
Date of Decision: 04-03-2009
M/s Sonia Overseas (P) Ltd. ....Petitioner
Versus
Union of India and others .....Respondents
CORAM: HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE HEMANT GUPTA
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Shri Jagmohan Bansal, Advocate, for the petitioner.
Shri Kamal Sehgal, Advocate, for the respondents.
T.S. Thakur, C.J. (Oral).
A Division Bench of this Court disposed of Civil Writ Petition
No. 16037 of 2008 by an order dated 22.9.2008 with the direction that the
Commissioner of Customs, Nhava Sheva, shall finalize within a period of
two months the parameters to be applied for assessing the value of the
imported goods for purposes of payment of customs duty. The assessment
of the petitioner was directed to be finalized within one month after the
parameters were finalised. Pursuant to the said order, the Commissioner
Customs, Nhava Sheva appears to have finalized the parameters/valuation
guidelines to be adopted for finalization of assessment in terms of
communication No. F.No. S/26-Misc-79/2008 Gr.1, which were received by
the assessing authority in its office on 15.1.2009. The assessing authority
CWP No.2659 of 2009 (2)
then proceeded to make a final assessment order on 7.2.2009 (Annexure
P.6, [Colly.] ) assessing a duty of Rs.2,22,478/-; 1,26,855/-; 3,33,435/- and
180,379/- as recoverable from the petitioner on account of the imports made
by it. The validity of the said orders of assessment has been assailed by the
petitioner in the present writ petition primarily on the ground that while
making the said orders, the assessing authority has not either issued any
notice to the petitioner or afforded to it any opportunity of being heard in
the matter.
When the matter came up before us on 26.2.2009 for hearing,
we had directed Shri Ghuman, learned counsel for the respondents to secure
the relevant record pertaining to the assessment orders in question and in
particular, take instructions whether the same were made after affording to
the petitioner an opportunity of being heard in the matter. Shri Sehgal, today
appears for the respondents and submits on the instructions of the officers
present with him that since the direction issued by this Court granted a
limited period of one month to the Assessing Authority to complete the
assessment proceedings, the said direction was understood by the Assessing
Authority to mean that no further opportunity or hearing was required to be
provided to the petitioner-assessee. He fairly conceded that neither any
notice of the assessment proceedings was issued nor any opportunity of
being heard was afforded to the petitioner at any stage before the making of
the assessment order, impugned in this petition. The impugned order is in
that view wholly unsustainable no matter the same is otherwise appealable
before the prescribed authority. It is fairly well settled that even when an
alternative remedy is available against an order, a Writ Court can interfere
where the same is made in violation of the principles of natural justice or
CWP No.2659 of 2009 (3)
where the statute on the basis whereof the order is made, is itself under
challenge. The present case falls in the first of the above situations and calls
for our intervention in view of the admitted factual position that the
petitioner had not been heard before the passing of the impugned order.
Learned counsel for the petitioner next submitted that the
petitioner has not been provided a copy of the parameters adopted for
finalization of the assessment referred to in the impugned order. He urged
that a copy of the said parameters ought to be made available to the
petitioner in order to make the hearing before the Assessing Authority
effective. He further urged that the petitioner’s contentions ought to be
examined by the Assessing Authority, both on facts and in law.
Learned counsel for the respondents has no objection to the
parameters referred to in the impugned order being made available to the
petitioner. He has, therefore, handed over a copy of the communication
referred to in the assessment order to Shri Bansal, counsel appearing for the
petitioner in the open Court today which contains the parameters in
question.
In the result, we allow this writ petition, quash the impugned
order Annexure P-6 (collectively.) dated 7.2.2009, passed by the Assistant
Commissioner Customs, Ludhiana and remit the matter back to the
Assessing Officer for passing a fresh assessment order in accordance with
law after hearing the petitioner. We direct that the petitioner shall appear
before the Assessing Authority on 15.4.2009 at 10 a.m. We make it clear
that in case the petitioner does not appear before the Assessing Authority on
the date and the time given, the Assessing Authority, shall be free to make a
fresh order without any further notice to the petitioner. We hope and trust
CWP No.2659 of 2009 (4)
that the points which the petitioner raises in connection with the assessment,
are examined by the Assessing Authority fairly and properly while making a
fresh order of assessment in accordance with law. No costs.
(T.S. THAKUR)
CHIEF JUSTICE
(HEMANT GUPTA)
JUDGE
04-03-2009
ds