{"id":154777,"date":"2009-07-03T00:00:00","date_gmt":"2009-07-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/malayala-manorama-company-vs-assistant-commissioner-of-on-3-july-2009"},"modified":"2016-04-27T00:24:04","modified_gmt":"2016-04-26T18:54:04","slug":"malayala-manorama-company-vs-assistant-commissioner-of-on-3-july-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/malayala-manorama-company-vs-assistant-commissioner-of-on-3-july-2009","title":{"rendered":"Malayala Manorama Company … vs Assistant Commissioner Of … on 3 July, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Malayala Manorama Company … vs Assistant Commissioner Of … on 3 July, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nOP.No. 13653 of 2002(A)\n\n\n1. MALAYALA MANORAMA COMPANY LIMITED,\n                      ...  Petitioner\n2. MR. JAYANT MAMMEN MATHEW,\n3. MRS. GEETHA VARKEY GEORGE,\n\n                        Vs\n\n\n\n1. ASSISTANT COMMISSIONER OF CUSTOMS\n                       ...       Respondent\n\n2. UNION OF INDIA, REPRESENTED BY\n\n                For Petitioner  :SRI.M.PATHROSE MATTHAI (SR.)\n\n                For Respondent  :SRI.JOHN VARGHESE, ASSISTANT SG\n\nThe Hon'ble MR. Justice K.BALAKRISHNAN NAIR\nThe Hon'ble MR. Justice C.T.RAVIKUMAR\n\n Dated :03\/07\/2009\n\n O R D E R\n    K.BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ.\n                  ---------------------------------\n                  O.P.No.13653 OF 2002\n                 ----------------------------------\n           Dated, this the 3rd day of July, 2009\n\n                       J U D G M E N T\n<\/pre>\n
                      ~~~~~~~~~~~~<\/p>\n
Balakrishnan Nair, J.\n<\/p>\n<\/p>\n
     The petitioners have approached this Court challenging<\/p>\n
Ext.P9 order of the Commissioner of Customs dated<\/p>\n
28.3.2002, ordering that they are liable to pay an amount of<\/p>\n
Rs.32,22,220\/- (Rupees thirty three lakhs twenty two thousand<\/p>\n
two hundred and twenty only) towards               differential duty<\/p>\n
payable under the Customs Tariff Act and Central Excise<\/p>\n
Tariff Act.\n<\/p>\n<\/p>\n
     2.    The brief facts of the case are the following:<\/p>\n
     The 1st   petitioner Company imported newsprint from<\/p>\n
South Korea in May, 1999. Customs duty at the rate of 5.5.%<\/p>\n
was paid and the goods were cleared on executing a bond for<\/p>\n
payment of any balance amount found due.               The Customs<\/p>\n
Officer concerned took samples of the newsprint imported for<\/p>\n
chemical analysis to find out whether the paper imported<\/p>\n
answers the definition of newsprint. On analysis, it was found<\/p>\n
that the paper imported contained wood fibres below 65% and<\/p>\n
O.P.No.13653\/2002              2<\/span><\/p>\n
therefore, the duty payable was at the rate of 67.3%. The<\/p>\n
1st petitioner was served with Ext.P2 notice informing about<\/p>\n
the results of the Chemical Analysis.       The 1st     petitioner<\/p>\n
replied by Ext.P3 dated 10.7.2000 calling for the details of the<\/p>\n
test results. The Assistant Commissioner of Customs (Imports)<\/p>\n
furnished Ext.P4 reply dated 16.10.2001, giving the details<\/p>\n
and also enclosing the analysis report by the department’s<\/p>\n
laboratory at New Delhi. Ext.P4 contained the working sheet<\/p>\n
concerning the assessment of differential duty also.         After<\/p>\n
considering Exts.P7 and P8 objections filed by the 1st<\/p>\n
petitioner, the 1st respondent passed Ext.P9 order holding that<\/p>\n
the paper imported by the petitioners was not newsprint and<\/p>\n
therefore, they were liable to pay differential duty of<\/p>\n
Rs.33, 22,220\/-.\n<\/p>\n<\/p>\n
      3.    In Exts.P7 and P8 representations, the 1st petitioner<\/p>\n
prayed for a chance to cross-examine the Customs Officer,<\/p>\n
who took the samples, and also the Chemist, who conducted<\/p>\n
the chemical analysis. But, the said request was considered<\/p>\n
and rejected by Ext.P9. Challenging Ext.P9, mainly, on the<\/p>\n
ground of violation of principles of natural justice, the Original<\/p>\n
Petition was filed. Under the provisions of the Act, the<\/p>\n
O.P.No.13653\/2002              3<\/span><\/p>\n
petitioners had a right of appeal to the Commissioner of<\/p>\n
appeals, then a further appeal to the Appellate Tribunal and<\/p>\n
thereafter, a further appeal to this Court on substantial<\/p>\n
question of law. The bypassing of those statutory remedies<\/p>\n
was justified by the petitioners taking the plea that the order<\/p>\n
of assessment was passed in violation of principles of natural<\/p>\n
justice, in as much as they were not given a chance to cross-<\/p>\n
examine the Officer, who took the samples, and the Chemist,<\/p>\n
who did the analysis. This Court entertained this Original<\/p>\n
Petition and granted stay of Ext.P9 on 30.5.2002 for one<\/p>\n
month. Later, on 28.6.2008, the stay was extended until<\/p>\n
further orders. When the matter came up for final hearing,<\/p>\n
the learned Single Judge felt that substantial questions arise<\/p>\n
for decision and therefore, referred the matter to the Division<\/p>\n
Bench.\n<\/p>\n<\/p>\n
      4.    We heard the learned senior counsel Sri. Pathros<\/p>\n
Matthai for the petitioners and Sri. John Varghese, learned<\/p>\n
counsel for the Revenue. Though the validity of the definition<\/p>\n
of ‘Newsprint’ was challenged in the writ petition, that point<\/p>\n
was not argued before us. The learned senior counsel Sri.<\/p>\n
Pathros Matthai took us through Exts.P7 and P8, wherein<\/p>\n
O.P.No.13653\/2002               4<\/span><\/p>\n
there was a specific request made to give a chance to cross-<\/p>\n
examine the Officers concerned. Learned senior counsel also<\/p>\n
took us through Ext.P9, wherein the said claim of the<\/p>\n
petitioners were dealt with.       The learned senior counsel<\/p>\n
submitted that when they contested the procedure followed<\/p>\n
for taking samples and also the genuineness of the analysis<\/p>\n
made, it was obligatory for the 1st respondent to make the<\/p>\n
Officers concerned available for cross examination. The<\/p>\n
refusal to give such a chance, caused very serious prejudice to<\/p>\n
them. The duty will be shooting up from 5.5% to 67.3%, as a<\/p>\n
result of the decision of the 1st respondent. The learned<\/p>\n
counsel relied on various decisions of the High Courts and the<\/p>\n
Apex Court to support the claim of the writ petitioners for a<\/p>\n
chance to cross-examine the Officers concerned.          Special<\/p>\n
reference was made in State of Kerala v. K.T.Shaduli<\/a> [AIR<\/p>\n
1977 SC 1627] and Swadeshi Polytex Ltd. v. Collector of<\/p>\n
Central Excise, Meerut<\/a> [2000(122)E.L.T.641(SC).              In<\/p>\n
K.T.Shaduli’s case, the Apex Court held as follows:<\/p>\n
            “5.  The second part of the proviso lays
\n            down that where a return has been submitted,
\n            the assessee should be given a reasonable
\n            opportunity to prove the correctness or
\n            completeness  of    such   return.     This<\/p>\n
O.P.No.13653\/2002                 5<\/span><\/p>\n
            requirement obviously applies at the first
\n            stage of the enquiry before the Sales Tax
\n            Officer comes to the conclusion that the
\n            return submitted by the assessee is incorrect
\n            or incomplete so as to warrant the making of a
\n            best judgment assessment. The question is
\n            what is the content of this provision which
\n            imposes an obligation on the Sales Tax
\n            Officer to give and confers a corresponding
\n            right on the assessee to be afforded, a
\n            reasonable    opportunity   ‘to   prove   the
\n            correctness or completeness of such return.’
\n            Now, obviously ‘to prove’ means to establish
\n            the correctness or completeness of the
\n            return by any mode permissible under law.
\n            The usual mode recognised by law for proving
\n            fact is by production of evidence and evidence
\n            includes oral evidence of witnesses.      The
\n            opportunity to prove the correctness or
\n            completeness of the return would, therefore,
\n            necessarily carry with it the right to
\n            examine witnesses and that would include
\n            equally the right to cross-examine witnesses
\n            examined by the Sales Tax Officer. Here, in
\n            the present case, the return filed by the
\n            assessee appeared to the Sales Tax Officer
\n            to be incorrect or incomplete because certain
\n            sales appearing in the books of           Hazi
\n            Usmankutty and other wholesale dealers were
\n            not shown in in the books of account of the
\n            assessee.   The Sales Tax Officer relied on
\n            the evidence furnished by the entries in the
\n            books of account of Hazi Usmankutty and
\n            other wholesale dealers for the purpose of
\n            coming to the conclusion that the return filed
\n            by the assessee was incorrect or incomplete.
\n            Placed in these circumstances, the assessee<\/p>\n
O.P.No.13653\/2002                 6<\/span><\/p>\n
            could prove the correctness and completeness
\n            of his return only by showing that the entries
\n            in the books of account of Hazi Usmankutty
\n            and other wholesale dealers were false, bogus
\n            or manipulated and that the return submitted
\n            by the assessee should not be disbelieved on
\n            the basis of such entries, and this obviously,
\n            the assessee could not do, unless he was given
\n            an   opportunity   of  cross-examining   Hazi
\n            Usmankutty and other wholesale dealers with
\n            reference to their accounts.       Since the
\n            evidentiary   material  produced    from    or
\n            produced by Hazi Usmankutty and other
\n            wholesale dealers was sought to be relied
\n            upon for showing that the return submitted
\n            by the assessee was incorrect and incomplete,
\n            the assessee was entitled to an opportunity to
\n            have Hazi Usmankutty and other wholesale
\n            dealers summoned as witnesses for cross-
\n            examination. It can hardly be disputed that
\n            cross-examination   is  one   of   the   most
\n            efficacious methods of establishing the truth
\n            and exposing falsehood.    Here, it was not
\n            disputed on behalf of the Revenue that the
\n            assessee in both cases applied to the Sales
\n            Tax Officer for summoning Hazi Usmankutty
\n            and other wholesale dealers for cross-
\n            examination, but his application was turned
\n            down by the Sales Tax Officer. This act of
\n            the Sales Tax Officer in refusing to summon
\n            Hazi Usmankutty and other wholesale dealers
\n            for cross-examination by the assessee clearly
\n            constituted infraction of the right conferred
\n            on the assessee by the second part of the
\n            proviso and that vitiated the orders of
\n            assessment   made against     the assessee.”<\/p><\/blockquote>\n
            (emphasis supplied)<\/p>\n
O.P.No.13653\/2002                7<\/span><\/p>\n
     5.     In support of the submission that the petitioners<\/p>\n
are entitled to approach this Court directly, when the order<\/p>\n
impugned has been passed in violation of principles of natural<\/p>\n
justice, reliance was placed in Whirlpool Corportion v.<\/p>\n
Registrar of Trade Marks<\/a> [1998 (8) SCC 1]. In the said<\/p>\n
decision, the Apex Court held as follows:\n<\/p>\n
            “15. Under Article 226 of the Constitution,
\n            the High Court, having regard to the facts of
\n            the case, has a discretion to entertain or not
\n            to entertain a writ petition.   But the High
\n            Court   has   imposed   upon   itself  certain
\n            restrictions one of which is that if an
\n            effective and efficacious remedy is available,
\n            the High Court would not normally exercise its
\n            jurisdiction. But the alternative remedy has
\n            been consistently held by this Court not to
\n            operate    as   a  bar    in  atleast   three
\n            contingencies, namely, where the writ petition
\n            has been filed for the enforcement of any of
\n            the Fundamental Rights or where there has
\n            been a violation of the principle of natural
\n            justice or where the order or proceedings are
\n            wholly without jurisdiction or the vires of an
\n            Act is challenged.”<\/p><\/blockquote>\n
     6.     Learned senior counsel further submitted that<\/p>\n
action taken in violation of principles of natural justice will<\/p>\n
make it arbitrary and therefore, violative of the fundamental<\/p>\n
right of the petitioners under Article 14 of the Constitution of<\/p>\n
India.\n<\/p>\n
O.P.No.13653\/2002                    8<\/span><\/p>\n
      7.    The learned counsel for the respondent brought to our<\/p>\n
notice the hierarchy of the authorities available under the statute for the<\/p>\n
redressal of the grievance of the writ petitioners. The learned counsel<\/p>\n
pointed out that the Commissioner of appeals has power to hold further<\/p>\n
enquiry and if found necessary, to take further evidence also.<\/p>\n
Therefore, the main grievance canvassed by the petitioners could have<\/p>\n
been redressed by filing the statutory appeal itself. So, the learned<\/p>\n
counsel prayed that the Original Petition may be dismissed.<\/p>\n
      8.    We considered the rival submissions made at the Bar and<\/p>\n
also the decisions cited before us. Since the Writ Petition was pending<\/p>\n
before this Court for the last seven years, we are inclined to hear the<\/p>\n
Writ Petition on merits. Chapter 48 of the Schedule of the Customs<\/p>\n
Tariff Act deals with paper and paperboard; articles of paper pulp, of<\/p>\n
paper or of paperboard. In the said Chapter, newsprint is defined as<\/p>\n
follows:\n<\/p>\n<\/p>\n
            “Newsprint means uncoated paper of a kind used
\n            for the printing of newspapers, of which not less
\n            than 65% by weight of the total fibre content
\n            consists of wood fibres obtained by a mechanical
\n            or chemi-mechanical process, unsized or very
\n            lightly sized, having a surface roughness Parker
\n            Print Surf (1 Mpa) on each side exceeding 2.5
\n            micrometres (microns), weighing not less than
\n            40g\/m2 and not more than 65 g\/m2.”<\/p><\/blockquote>\n
O.P.No.13653\/2002             9<\/span><\/p>\n
      9.    In this case, on analysis it was found that the<\/p>\n
percentage of wood fibre content was below 65%.           The<\/p>\n
petitioners would say that a large consignment of newsprint,<\/p>\n
packed in several containers, were imported in May, 1999.<\/p>\n
But, samples were taken from only one reel in one container.<\/p>\n
The sampling was not done in accordance with the procedure<\/p>\n
prescribed for the same. Having regard to the wood used,<\/p>\n
there may be change in the wood fibre content. So, the<\/p>\n
sampling from all the containers should have been taken to<\/p>\n
ascertain the correct wood fibre content. The petitioners also<\/p>\n
disputed, the method employed for arriving at the wood fibre<\/p>\n
content. For the above reasons, they wanted to cross-examine<\/p>\n
the Customs Officer, who took samples and the Chemist, who<\/p>\n
did the analysis.   We notice that the analysis report is a<\/p>\n
document relied on against the petitioners. Therefore, if they<\/p>\n
request to make available the author of that report for their<\/p>\n
cross-examination, the assessing officer was bound to do<\/p>\n
that. Regarding the samplings, if the records are produced, it<\/p>\n
could be found out       whether for    sampling the proper<\/p>\n
procedure has been followed or not. It may not be necessary<\/p>\n
to examine the Officer, who took the samples.        But, the<\/p>\n
chemical analysis report, which alone decided the fate of the<\/p>\n
O.P.No.13653\/2002             10<\/span><\/p>\n
case, is a vital document against the petitioners. Therefore,<\/p>\n
we feel that they should have been given a chance to cross-<\/p>\n
examine the Chemist, who did the analysis. For denying that<\/p>\n
opportunity, we feel that the impugned order is vitiated,<\/p>\n
especially, in view of the enormity of the prejudice caused to<\/p>\n
them.\n<\/p>\n<\/p>\n
     10. In the result, Ext.P9 is quashed and the matter is<\/p>\n
remitted to the 1st respondent for fresh determination in<\/p>\n
accordance with law. The records relating to taking of the<\/p>\n
samples shall be made available to the petitioners for their<\/p>\n
perusal. If the Officer, who did the analysis, is not available,<\/p>\n
his successor-in office along with the records concerned shall<\/p>\n
be made available for the cross-examination of the petitioners.<\/p>\n
     11. If the petitioners invoked the appellate remedy,<\/p>\n
normally, they would have paid the amount levied. Because<\/p>\n
this Court entertained this Original Petition and granted<\/p>\n
unconditional stay for the last 7 years, the petitioners were<\/p>\n
saved from paying any amount. We take note of the maxim<\/p>\n
that ‘act of Court shall prejudice none’. By the Act of this<\/p>\n
Court, the Revenue also cannot be prejudiced. So, in case<\/p>\n
O.P.No.13653\/2002              11<\/span><\/p>\n
after reconsideration, any amount is found due, the Revenue<\/p>\n
can demand the same with interest from the date, the amount<\/p>\n
under Ext.P9 became payable by the petitioners.         Learned<\/p>\n
senior counsel for the petitioners pointed out that since Ext.P9<\/p>\n
was a void order, it never had any legal effect and quashing<\/p>\n
the same obliterated it from day one. So, the direction to pay<\/p>\n
interest may not be justified, it was submitted.      This case<\/p>\n
happened to be pending before this Court because of docket<\/p>\n
explosion. Going by the above maxim, Revenue cannot be<\/p>\n
asked to suffer. Because of the delay from the part of this<\/p>\n
Court, the petitioners were able to keep the money with them<\/p>\n
so long.    So, the contention of the learned senior counsel<\/p>\n
concerning payment of interest cannot be accepted.<\/p>\n
     The Original Petition is disposed of as above.<\/p>\n
                      (K.BALAKRISHNAN NAIR, JUDGE)<\/p>\n
                             (C.T.RAVIKUMAR, JUDGE)<\/p>\n
ps<\/p>\n
O.P.No.13653\/2002    12<\/span><\/p>\n
                             K.BALAKRISHNAN NAIR &
\n                                   C.T.RAVIKUMAR, JJ.\n<\/p>\n
                         ===========================
\n                                      O.P.NO.13653\/2002
\n                         ===========================<\/p>\n
                                           JUDGMENT<\/p>\n
                                 DATED 3RD JULY, 2009
\n                       ==============================<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Malayala Manorama Company … vs Assistant Commissioner Of … on 3 July, 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM OP.No. 13653 of 2002(A) 1. MALAYALA MANORAMA COMPANY LIMITED, … Petitioner 2. MR. JAYANT MAMMEN MATHEW, 3. MRS. GEETHA VARKEY GEORGE, Vs 1. ASSISTANT COMMISSIONER OF CUSTOMS … Respondent 2. UNION […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-154777","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nMalayala Manorama Company ... vs Assistant Commissioner Of ... on 3 July, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/malayala-manorama-company-vs-assistant-commissioner-of-on-3-july-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Malayala Manorama Company ... vs Assistant Commissioner Of ... on 3 July, 2009 - 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