JUDGMENT
Ruma Pal, J.
1. The subject matter of challenge in this writ petition is the failure of the Customs Authorities to assess and clear the goods imported by the petitioner. According to the petitioner what were imported were the parts of Air-conditioners. The . goods arrived in India in October, 1990. According to the petitioners the goods were examined by the Customs Authorities and found to be classifiable under Tariff Heading 8414.30 of the Customs Tariff Act, 1975. It is the petitioners complaint that in spite of the aforesaid the respondents were refusing to release the said goods or finally assess the same.
2. An interim order was passed by this court to the following effect:
“In this application, the writ petitioner has complained about the inaction of the respondent further authorities in assessing the duty leviable in respect of the consignment in question. The respondent Authorities appearing through their counsel have no objection if a time bound schedule is fixed for assessing the petitioner’s liberty in respect of the goods in question.
I therefore pass the following interim order :
1. The respondent authorities will intimate through their Advocate on record to the petitioner’s advocates on record the particulars documents required for the purpose of assessment within 24 hrs. from date in 6-3-1991.
2. The petitioner will supply the documents required before the respondent authorities by 7-3-1991.
3. The respondent authorities will pass their assessment order before 11-3-1991.
4. Upon the respondent authorities assessing the customs duty, the Petitioner will pay the same.
5. The Customs authorities will release the said goods to the writ petitioner within 48 hrs. of such payment. Such payment will be made without prejudice to the rights and contentions of the writ petitioner.
6. The writ petitioner will be entitled to remove the goods after payment of the port charges if any.
Affidavit in opposition is to be filed by 26-3-1991; affidavit in reply by 2-4-1991 the matter will appear in the list on 3-4-1991 as adjourned motion.
All parties to act on a signed copy of this order upon usual undertaking.”
3. In spite of the aforesaid order according to the petitioner, the respondents have neither released the goods nor passed any order of final assessment.
4. On behalf of the respondents it has been contended that the assessment could not be completed because the petitioner had not produced the relevant records. The respondents have further stated that prior to appraisement of the goods, the Special Branch (Investigation) had enquired into the matter and had opined that the goods were classifiable under Tariff Heading 8415.10 of the Customs Tariff Act, 1975. According to the respondents, in view of the dispute between the S.B.I. and the Assistant Collector (Dock) the matter was resolved by the Additional Collector who was of the view that the goods should be classified under Tariff Heading 8415.10. No copy of the order of the Additional Collector was annexed to the affidavit of the respondents. I therefore called for the records which were produced before me. The Additional Collectors approval is dated 11-2-1991. The approval is of a note dated 7/8-2-1991 which reads as follows:
“The goods in this case are similar in material to those covered by B/e cited at A prepage. The S/A’s report is apparently not correct since the subject goods are not a “set” of articles but an assembly. Therefore the provisions of Section 19 of CA.O.’s cannot be applied. We may therefore assess the B/e u/h 8415.10.”
5. The Bill of Entry cited was No. 602 dt. 8-3-1990 of M/s. CEEAN International, Calcutta.
6. On 18-4-1991 the following endorsement appears in the file produced by the respondents.
“B/E assessed u/h 8415.10 as per Additional Collector’s order dated 11-2-1991 on N/s. II in anticipation of approval pl.”.
7. There has been however no final order of assessment.
8. The petitioner contends that the classification had been already made by the Assistant Collector (Docks). There could be no reclassification or review under the Customs Act, 1962 (hereinafter referred to as the Act). According to the respondents however the proper officer to make the Assessment under Section 17 read with Section 2(34) of the Act was the Assistant Collector (Appraisement). The endorsement on the petitioner’s Bill of Entry by the Assistant Collector (Docks) was a mere opinion and not a decision. Therefore, it is submitted that there was no question of review. As far the merits of the case were concerned it is submitted that disputed questions of fact were involved which could not be determined under Article 226 of the Constitution.
9. It is also contended that by applying Rule 2(a) of the General Rules for the Interpretation of the First Schedule to the Customs Tariff Act, 1975 the proper classification should be Tariff Item 8415.10 and not 8414.30. It is then contended that the Assistant Collector (Docks) was not a party and that the writ petition could not determine his absence.
10. Lastly it is contended that there was provision for an appeal under the Act and that the petitioner should be relegated to its remedy under the Act.
11. There is no material whatsoever on the basis of which I can either reject or accept the first contention of the respondents. It has not been shown affirmatively by either of the parties whether the Assistant Collector (Docks) who made the endorsement on the petitioner’s Bill of Entry was authorised to classify the goods.
12. It is true that the matter was referred to the Special Investigation Branch (SIB) and that they opined that the goods should be classified under Tariff Heading 8415.10. In my view the question of classification is not a matter for investigation which the SIB can resolve. It is a question of interpretation. This is not a case where any false statement has been made by the petitioner. The goods have been found to correspond with the description in the Bill of Entry.
13. The respondents have not shown under what provisions of law the matter was referred to the Additional Collector or what jurisdiction the Additional Collector had in passing any order in the matter.
14. The decision to assess under TH 8415.10 has clearly been taken only on the basis of the Additional Collector’s order. In my opinion, the Assessing Officer cannot abdicate his functions in this fashion.
15. The basis of the Additional Collector’s order is also doubtful. No reason is given either etymologically or by way of precedent why “set” does not include “assembly” in Section 19 of the Act.
16. In fact “set” has been defined in the Shorter Oxford Dictionary as follows :
“A collection or number of things. A collection of instruments, tools, or machines customarily used together in a particular operation; a complete apparatus employed for some specific purpose.”
The two tariff headings read as follows :
“8414.30 – Compressors of a kind used in refrigerating equipment Fans;
8415 Air-conditioning machines, comprising a motor driven fan and elements for changing the temperature and humidity, including those machines in which the humidity cannot be separately regulated
8415.10 – Window or wall types, self-contained”
17. Rule 2(a) of the General Rules for the Interpretation of the First Schedule to the Customs Tariff Act, 1975 reads as follows:
“2(a). Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also be taken to include a reference to that article complete or finished for falling to be classified as complete or finished by virtue of this rule, presented unassembled or dis-assembled.”
18. The authorities have not at all addressed their minds to the question how the goods imported by the petitioner have the essential characteristics of an air-conditioning unit under T.H. 8415.10.
19. No reason has also been put forward by the respondents for drawing a distinction between the petitioners Bill of Entry and the Bills of Entry produced by the petitioner in respect of other consignments which were cleared under T.H. 8414.30.
20. I am unable to accept the contention of the respondents that the Assistant Collector (Docks) was a necessary party to this petition. No relief has been claimed against him and the issues involved in this matter can be determined without his presence.
21. I am also unable to accept the contention that there is any question of appeal. According to the respondents themselves no final assessment has yet been made.
22. For the reasons aforesaid I dispose of the writ petition by directing that:
(1) Subject to the petitioner paying the Customs duty on the goods on the basis that the same are classifiable under Tariff Heading 8414.30 and subject to the petitioner furnishing a Bank Guarantee for the difference in duty with the duty as claimed by the respondents, the Customs Authorities will release the goods in question within 48 hours thereafter.
(2) The Bank Guarantee must be kept renewed pending the final assessment. The Bank Guarantee must be in favour of the Collector of Customs in Calcutta. The Bank Guarantee must contain a clause to the effect that if the petitioner fails to renew the Bank Guarantee, the Bank will of its own and forthwith deposit the entire guaranteed amount with the Collector.
(3) the petitioner will be entitled to release the goods after payment of the port charges, subject to clause 10 below. (4) The final Assessment order must be passed after giving the petitioner an opportunity of being heard within three weeks from date. The Assessing Officer will apply his mind to the matter independently of the order of the Additional Collector and the SIB recommendation and in the light of the observations contained in this judgment. (5) If the final assessment proceeds on the basis that the goods imported by the petitioner are classifiable under Tariff Heading 8415.10, the respondents will be at liberty to encash the Bank Guarantee within 35 days after the communication of the final order to the petitioner and subject to any order that the petitioner may obtain from any higher quasi-judicial authority, under the Act. The Appellate Authority will dispose of an application for stay within one week of the filing thereof. (6) If the final assessment is that the goods are classifiable under Tariff Heading 8414.30, the bank guarantee must be discharged and returned by the Collector of Customs to the petitioner after a period of 35 days from the date of communication of the order to the Department and subject to any further order that the Department may obtain from any higher quasi-judicial Authority under the Act. The higher authority will dispose of any application for interim stay within one week from the filing thereof. (7) If the assessment is not completed within the time specified, the bank guarantee will stand discharged provided that the non-completion of the Assessment is not due to the petitioner's default. (8) If the petitioner does not attend the hearing even after due Notice, the Assessment may be made ex parte. To obviate disputes, notice of hearing should be sent to the Advocate for the petitioners. (9) The payment of the duty on the basis that the goods are classifiable under Tariff Heading 8414.30 as well as the furnishing of the Bank Guarantee is without prejudice to the rights and contentions of the parties and must not be seen as even a prima facie finding as to the correctness or incorrectness of the classification of the petitioner's goods. It is made clear that this Court has not gone into any question on merit. It will be open to the petitioner to raise all points taken in this writ petition before the Assessing Authority.
(10) The Customs Authorities will grant a wharf rent exemption certificate to the petitioner for the period subsequent to 6 (six) weeks after the expiry of the free laydays granted by the Port Authorities.
23. There will be no order as to costs.
24. All parties to act on a signed copy of the operative part of this judgment and order on usual undertaking.