Calcutta High Court
M/S. Santosh Radio Product & Anr vs The Commissioner Of Customs (Port) on 31 January, 2018
Author: Subrata Talukdar
Bench: Subrata Talukdar
ORDER SHEET
WP No.653/2017
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
M/S. SANTOSH RADIO PRODUCT & ANR.
Versus
THE COMMISSIONER OF CUSTOMS (PORT), KOLKATA & ANR.
BEFORE :
THE HON'BLE JUSTICE SUBRATA TALUKDAR
DATE : 31st January, 2018
Appearance :
Mr.Arijit Chakrabarti,
Mr.Nilotpal Chowdhury, Advs., for
the petitioner.
Mr.Amitabroto Roy,
Ms.Manasi Mukherjee, Advs., for
the respondent no.1.
The Court : Party/parties are represented in the order of their name/names as printed above in the cause title.
From the brief facts presented by learned Counsel for the petitioners, it transpires that the Deputy Commissioner of Customs, Group-V A&B/,the respondent no.2 to the writ petition, issued an order on the 27th of October, 2017, which is impugned in this writ petition.
2
By the order of 17th October, 2017 the respondent no.2 reassessed the Bill of Entry (BE) No.3291581 dated the 18th September, 2017 by classifying the goods in issue in the nature of Multiple Media speakers under Tariff Item no.85279100 in place and stead of 85182200, as claimed by the petitioners.
Mr.Chakrabarti, learned Counsel for the petitioners, submits that an identical order was passed on the 19th of September, 2017 by the respondent no.2 in case of identical goods imported by the petitioners. The order dated 19th September, 2017 was set aside by the order of 5th of October, 2017 being Order in Original no.Kol/CUS/DC/3293/ADJN (PORT/2017(Gr.-V A&B) dated the 19th of September, 2017 by the Commissioner of Customs (Appeals), inter alia, holding that the goods shall be classified under tariff item no.85182200. Mr.Chakrabarti argues that the Order in Original follows the decision of the learned Customs Excise and Service Tax Appellate Tribunal (CESTAT) in Logic India Trading Co. Vs. Commissioner of Customs, Cochin, as reported in 2016 (337) E.L.T. 65 (Tri.Bang.).
The Order in Original also notices that the decision of the learned CESTAT was affirmed by the Hon'ble Apex Court by 3 dismissing the appeal of the Revenue/Respondents/Department which again is reported in 2016(342) ELT A34(SC). Therefore, Mr.Chakrabarti submits and, prima facie, not without merit, that the respondent no.2 could not have repeated in verbatim his earlier order dated 19th September, 2017 by the order of 27th October, 2017 and imposed the tariff item no.85279100 in place and stead of 85182200.
Appearing on behalf of the Revenue/Respondents, Mr.Ray, learned Counsel submits that the order is a reasoned order and there has been no violation of the principles of natural justice. The additional submission is made by learned Counsel for the Revenue/Respondents, that the order under challenge dated 27th October, 2017 is subject to appeal before the Commissioner of Customs (Appeals) as was the procedure followed by the petitioners in connection with the order of the respondent no.2 dated 19th September, 2017. Mr.Chakrabarti makes the additional point that the classification of goods under item no.85182200 was also followed by the Customs Authorities at Chennai and, there are no justifiable reasons for the respondent no.2 in Kolkata to differentiate/deviate from such classification, although the same Authority in dealing with the same tax. 4
Having heard the parties and considering the materials placed, this Court finds enough justification at this stage in the submissions of Mr.Chakrabarti to admit the writ petition. This Court is of the view that the order of the respondent no.2 dated 27th October, 2017, notwithstanding the appellate provision, is amenable to the efficacious jurisdiction of this Court having regard to the obvious prima facie non-application/mechanical application of mind by the respondent no.2.
At this stage, Mr.Roy, learned Counsel for the Revenue/Respondents, seeks an opportunity to clarify the position by way of Report on Affidavit on the next date.
Such leave is granted. Let an advance copy of the Report on Affidavit be handed over to Mr.Chakrabarti to respond to the same on the next date.
Let the matter next appear under the same heading 'Mentioned Matter' on 14th February, 2018.
[SUBRATA TALUKDAR, J.] sd/ 5