Calcutta High Court (Appellete Side)
Ac Naresh Agarwal vs Union Of India & Ors on 12 September, 2013
Author: Harish Tandon
Bench: Harish Tandon
1
Court 12.9.2013 W.P. 27095 (W) of 2013
No22
Sl 32
Ac Naresh Agarwal
-vs-
Union of India & Ors
Mr. Sukhendu Sekhar Roy
Mr. Shakeel Mohammad Akhtar ... For Petitioner
Mr. Rajiv Lall ... For Respondent No. 1
Mr. Rajarshi Bhardwaj Mr. K.K. Maiti ... For Respondents No. 5&6 The petitioner has challenged the notification dated May 13, 2013 issued by the Director General of Foreign Trade in exercise of power under Section 5 of the Foreign Trade (Development & Regulation) Act, 1992 read with para 2.1 of the Foreign Trade Policy, 2009-2014 by which the CIF value was revised from Rs. 75/- to Rs. 110/- and above per Kg.
According to the petitioner, those conditions are arbitrary and without any basis. It is further averred that the import cannot be restricted upon fixation of the CIF value, which offends the right guaranteed under Articles 19 (1)(g) and 21 of the Constitution of India.
The respondents say that the policy adopted under the Foreign Trade (Development & Regulation) Act, 1992 is to be adhered at the time of imposition of the duty taking the same as tariff value under Section 14 of the Customs Act, 1962. The respondents further say that the bill of entry does not indicate that the CIF value is as per the said circular dated 13th May, 2013 issued by the Director General of Foreign Trade and attracts the definition clause enshrined under sub-section 33 of Section 2 of the Customs Act, 1962 as prohibited goods.
It is further submitted that Section 46 of the said Act requires import of any goods to be made upon presentation of the bill of entry for home consumption and any omission or misdescription therein would be deemed to be 'prohibited goods' and the authorities have correctly issued the show cause notice upon the petitioners.
The petitioner has brought to the notice of this Court the circular dated 29th June, 2013 issued by the Deputy Commissioner of Customs / Import permitting the provisional assessment to be made on the basis of the notification dated 13th May, 2013. The petitioner further says that the said office order is binding on the customs authorities and they cannot detain the goods, but to release by adhering the procedure provided therein.
The respondents dispute the aforesaid proposition as the tariff value of the goods of the petitioner has been revised in exercise of 2 power under sub-section 2 of Section 14 of the Customs Act, 1962. The circular dated 29th August, 2013 in this regard is produced before this Court. The respondents, however, could not dispute the proposition that the goods imported by the petitioner can be released on provisional assessment and the payment of the duty thereupon.
The dispute, therefore, hinges whether the provisional duty is to be assessed on the basis of the tariff value fixed in the impugned circular dated 13th May, 2013 or on the basis of the latest circular dated 29th August, 2013.
Sections 14, 15 and 18 of the Customs Act, 1962 provide the full mechanism for fixation of the tariff value, the rate of duty and its applicability.
Since an arguable case is made out, which, in my opinion, can be decided only upon exchange of affidavits, this Court, therefore, passes an interim order directing the customs authorities to make the provisional assessment in accordance with the provisions applicable therefor and upon payment of the duty by the petitioner, shall release the goods so imported by the petitioner.
Let affidavit-in-opposition to the writ petition be filed within one week after reopening of this Court after Puja Vacation. Reply thereto, if any, be filed within one week thereafter.
Let the matter be listed under the heading 'Listed Motion' two weeks after reopening of this Court after the ensuing Puja Vacation.
It is, however, made clear that the authorities shall proceed on the basis of the show cause notice, but they are restrained from taking any coercive measures against the petitioner till the disposal of the writ petition.
(Harish Tandon, J.)