Gujarat High Court
Krupa Chaton Mfg. Company Pvt Ltd & vs Union Of India & 2 on 28 April, 2017
Author: Harsha Devani
Bench: Harsha Devani
C/SCA/7499/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7499 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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KRUPA CHATON MFG. COMPANY PVT LTD & 1....Petitioner(s)
Versus
UNION OF INDIA & 2....Respondent(s)
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Appearance:
MR DEVAN PARIKH, SENIOR ADVOCATE with MR DHAVAL SHAH,
ADVOCATE for the Petitioner(s) No. 1 - 2
MR CHINTAN H DAVE, ADVOCATE for the Respondent(s) No. 2 - 3
NOTICE NOT RECD BACK for the Respondent(s) No. 1
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
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C/SCA/7499/2017 JUDGMENT
HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 28/04/2017
ORAL JUDGMENT
(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. Rule. Mr. Chintan Dave, learned senior standing counsel waives service of notice of rule on behalf of the respondents No.2 and 3.
2. The petition is directed against the order-in-original dated 25.03.2017 passed by the Deputy Commissioner of Customs, ICD Khodiyar, Gandhinagar, whereby the assessable value of Glass Chaton (Beads) Crystal of different sizes has been discarded and the value has been enhanced.
3. Mr. Devan Parikh, Senior Advocate, learned counsel with Mr. Dhaval Shah, learned advocate for the petitioner invited the attention of the court to the record of the case to point out that the petitioner filed Bill of Entry No.8131672 for the goods in question and had also filed another Bill of Entry No.8549106 for identical goods at ICD, Valvada (Vapi). The petitioner filed another Bill of Entry No.8694597 for Glass Chatons (Beads) on 27.02.2017 at ICD, Khodiyar at Gandhinagar. On 14.03.2017, the appraiser loaded an amount of value for item No.6 considering NIDB data price of identical goods at US$ 19 per kg. However, the petitioner did not object to such value to avoid further delay but the revenue raised further query calling upon the petitioner to produce the import file with all documents. Subsequently, on 15.03.2007, the petitioner came to know through ICES that the respondent had further Page 2 of 5 HC-NIC Page 2 of 5 Created On Tue Aug 15 23:13:53 IST 2017 C/SCA/7499/2017 JUDGMENT enhanced the value of the goods at serial No.6 from US$19 per kg to US$ 31.31 which is US$ 12.31 higher than the original assessment. The petitioner, therefore addressed a letter dated 17.03.2017 to the third respondent and objected to reassessment and enhancement of value and requested the third respondent to supply comparable data of identical goods, NIDB data of contemporaneous imports of identical goods of the same country of origin and/or any other documents based on which value of the price of goods was enhanced. The petitioner waived the show cause notice but requested to give personal hearing. On 21.03.2017, the petitioner once again addressed a communication to the respondents to afford an opportunity of personal hearing and requested them to communicate the basis of enhancement. It was submitted that by the impugned order dated 25.03.2017, the third respondent has, without affording any opportunity of personal hearing and without supplying the requisite documents, passed the impugned order in clear violation of the principles of natural justice. It was submitted that having regard to the fact that the impugned order has been passed ex parte without affording any opportunity of hearing to the petitioner, the same being violative of the principles of natural justice, deserves to be quashed and set aside and the matter is required to be remanded to the third respondent for deciding the same afresh, after affording the petitioner an opportunity of hearing.
3.1 The learned counsel has further submitted that during the pendency of the proceedings before the adjudicating authority, the petitioner may be permitted to clear the Bills of Entry, subject to furnishing a bond to the respondent authorities in respect of the differential amount of duty.
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4. On the other hand, Mr. Chintan Dave, learned senior standing counsel for the respondents No.2 and 3 has placed reliance upon the contents of the affidavit-in-reply dated 26.04.2017 filed on behalf of the said respondents. It was submitted that the Bill of Entry was assessed on 15.03.2017 under section 17(4) of the Customs Act, 1962, whereas the letter dated 17.03.2017 of the petitioner seeking personal hearing was received belatedly after the assessment was finalised on 15.03.2017. It was, accordingly, urged that no case has been made out so as to warrant interference.
5. A perusal of the record of the case including the contents of the affidavit-in-reply filed on behalf of the respondents No.2 and 3 makes it amply clear that though the petitioner had by a communication dated 17.03.2017, requested the third respondent to waive the show cause notice and give a suitable date for personal hearing in the matter in the interest of natural justice, which was once again followed by a communication dated 21.03.2017 seeking an opportunity of personal hearing, while passing the impugned order dated 25.03.2017, no such opportunity of hearing has been granted to the petitioner. On reading the impugned order in its entirety, it is evident that there is no reference to any submission on behalf of the petitioner nor is there anything to indicate that any opportunity of hearing has been given to the petitioner. Admittedly, therefore, the impugned order has been passed ex parte without affording any opportunity of hearing to the petitioner and hence, is clearly in breach of the principles of natural justice which renders the same unsustainable. Under the circumstances, the petitioner has Page 4 of 5 HC-NIC Page 4 of 5 Created On Tue Aug 15 23:13:53 IST 2017 C/SCA/7499/2017 JUDGMENT made out a case for exercise of powers under Article 226 of the Constitution of India, despite the fact that the subject matter of challenge before the court is an order-in-original passed by the third respondent, which is an appealable order.
6. In the light of the above discussion, the petition succeeds and is, accordingly, allowed. The impugned order-in-original dated 25.03.2017 passed by the third respondent is hereby quashed and set aside and the proceedings are restored to the file of the adjudicating authority, who shall decide the same in accordance with law, after giving a reasonable opportunity of hearing to the petitioner. In the meanwhile, during the pendency of the adjudication, the petitioner may be permitted to provisionally clear Bills of Entry subject to furnishing bond for the full amount of differential duty and bank guarantee for 20% of the amount of differential amount in terms of section 17 of the Customs Act, 1962. Rule is made absolute accordingly with no order as to costs. Direct service is permitted.
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