IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 23RD MARCH 2011 / 2ND CHAITHRA 1933 WP(C).No. 8289 of 2011(I) ------------------------- PETITIONER: --------------- HARI PRIYA TRADERS, KP/X/244, ARIYANNUR P.O., TRICHUR DISTRICT, REPRESENTED BY ITS PROPRIETOR, NARAYANA PODUVAL. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENTS: --------------- 1. THE COMMISSIONER OF CUSTOMS, CUSTOMS HOUSE, COCHIN-09. 2. THE ASSISTANT COMMISSIONER OF CUSTOMS (IMPORTS), OFFICE OF THE COMMISSIONER OF CUSTOMS, CUSTOMS HOUSE, COCHIN-9. BY ADV. SRI.JOHN VARGHESE,SC,CEN.BOARD OF EXCISE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No. 8289 OF 2011 ......................................................................... Dated this the 23rd March, 2011 J U D G M E N T The petitioner has approached this Court seeking to have the assessment of customs duty finalised at the hands of the respondents following Ext.P8 order passed by the Customs, Excise and Service Tax Appellate Tribunal, Bangalore, which according to the petitioner, covers the issue in respect of the bills of entries of the petitioners as well. 2. The issue takes it origin to the import of 'betel nuts', by the petitioner and other similarly situated persons, through Cochin Port. 3. The case of the petitioner is that, till October, 2010, the duty was being assessed, on the basis of the 'declared value'. which substantially got changed, thereafter. When the respondents insisted to have it assessed based on the 'actual W.P.(C) No. 8289 OF 2011 2 value' which was sought to be fixed in the way as proposed by the Department fixing the minimum value as Rs.34/- per kg), the same was sought to be intercepted by filing a writ petition before this Court at the instance of the parties concerned, which ultimately came to be dealt with by the Division Bench of this Court leading to Ext.P7 judgment in W.A No.2048/2010 and connected cases. 4. The grievance projected therein was that, in spite of the specific provision to have provisional assessment, the Department was insisting to have final assessment delaying the process and thereby causing undue loss and hardships to the parties; which was stated as an abuse of the process of law and hence sought to be interfered. 5. After hearing both the sides, the Division Bench of this Court passed Ext.P7 verdict, directing the Department to finalise the 'provisional assessment' taking the value as found to be fit and proper by the Department, with liberty for the petitioners/appellants therein to have the goods released on condition that 50% of the liability so fixed was satisfied in cash; W.P.(C) No. 8289 OF 2011 3 simultaneously furnishing a Bank guarantee or immovable property in respect of the balance amount. Subsequently, some of the similarly situated persons like the petitioner herein also approached this Court by filing W.P (C) No.37318/2010, wherein, a similar judgment was passed on 21st December, 2010 following the norms fixed by the Division Bench, to have the matter finalised accordingly. 6. In the meanwhile, one of the similarly situated parties had taken up the matter in appeal against the assessment orders passed by the Department by approaching the Excise and Service Tax Appellate Tribunal, Bangalore and after considering the merits, the Tribunal set aside the assessment as per Ext.P8 order dated 01.02.2011. Contention of the petitioner is that, the factual position having been decided by the Tribunal in favour of the assessee vide Ext.P8 order , no different course is liable to be pursued by the Department involving the same/similar consignment and hence the proceedings now at the hands of the Department are to be finalised following Ext.P8 verdict passed by the Excise and Service Tax Appellate Tribunal, W.P.(C) No. 8289 OF 2011 4 Bangalore. 7. The learned standing counsel appearing for the respondents submits that Ext.P8 order passed by the Excise and Service Tax Appellate Tribunal, Bangalore stands entirely on a different footing. The said order was passed by the Tribunal in respect of the goods declared as 'betelnuts split lali grade C (ungarbled)'. It is stated that the merits of each case have to be dealt with separately by taking note of the relevant facts and circumstances such as the quality of the goods, country of origin, whether the import is in part or bulk, etc and hence that Ext.P8 order of the Tribunal cannot have uniform application in this regard. It is also stated that Ext.P8 order passed by the Excise and Service Tax Appellate Tribunal, Bangalore itself is not correct or proper and that the Department is intending to have it challenged. 8. What should be the course to be pursued by the Assessee, has clearly been specified by the Division Bench of this Court in Ext.P7 judgment, giving appropriate directions to have the provisional assessment passed,enabling the parties W.P.(C) No. 8289 OF 2011 5 concerned to have the goods released on satisfying the requirement as mentioned therein and as to the further steps. Taking note of the fact that the final assessment order had already been passed in W.A No.2048//2010 and connected cases, it was observed by the Division Bench that the concerned assessee had to pursue the statutory remedy, if he was aggrieved by the final assessment. In the said circumstances, the course open to the present petitioner; once the assessment is finalised; is to pursue such statutory remedy by approaching the Excise and Service Tax Appellate Tribunal. 9. In the above facts and circumstances, the respondents are directed to finalise the proceedings and pass final assessment orders, in respect of the pending bills of entries, after considering the entire materials on record forthwith. Petitioner is at liberty to produce all the requisite documents in support of their claim and can also place reliance on Ext.P8 order passed by the Excise and Service Tax Appellate Tribunal, Bangalore, if the same is applicable to the case in hand. A speaking order shall be passed, in accordance with law, within 'one week' thereafter. W.P.(C) No. 8289 OF 2011 6 Petitioner shall produce a copy of this judgment along with copies of the relevant materials, before the respondents for compliance. The writ petition is disposed of as above. P.R. RAMACHANDRA MENON, JUDGE. lk