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Judgment
R. Sudhakar, J.—Heard Mr. B. Vijay Karthikeyan, learned counsel for the appellants and Mr. A.K. Jayaraj, learned counsel appearing for
the respondents. By consent, the writ appeals are taken up for final disposal. The appeals are filed against the orders of the learned single Judge,
dated 12.11.2013, directing the release of goods namely, Betel Nuts, on certain conditions, which are as follows:
In the result, this writ petition is disposed of in the following terms:
(a) The petitioner shall pay the admitted customs duty, at the rate of 700 US Dollars per metric ton.
(b) The petitioner shall deposit 75% of the differential duty as finally assessed by the third respondent on 21.08.2013. The said amount shall be
deposited to the credit of the third respondent within ten days.
(c) In respect of the balance 25% of the differential amount of duty, the petitioner shall execute a bond to the satisfaction of the third respondent.
(d) On compliance of the above conditions, the goods will be released by the respondents to the petitioner within a period of ten days thereafter.
(e) The first respondent shall expedite the adjudication proceedings and dispose of the same, as early as possible, after affording sufficient
opportunity to the petitioner.
The Revenue is aggrieved by the conditional orders imposed by the learned single Judge primarily on the ground that the valuation in respect of
the goods in question is covered by notification 85/2013 Customs (NT), dated 21.08.2013 which reads as follows:
Government of India,
Ministry of Finance,
(Department of Revenue)
(Central Board of Excise and Customs)
Notification No. 85/2013-Customs (N.T.)
New Delhi, 21st August 2013
30, Shravana, 1935 (SAKA)
S.O...(E):-In exercise of the powers conferred by sub-section (2) of Section 14 of the Customs Act, 1962 (52 of 1962), the Central Board of
Excise and Customs, being satisfied that it is necessary and expedient so to do, hereby makes the following amendment in the notification of the
Government of India in the Ministry of Finance (Department of Revenue), No. 36/2001-Customs (N.T.), dated the 3rd August, 2001, published
in the Gazette of India, Extraordinary, Part II, Section 3, Sub Section (ii) vide number S.O. 748(E), dated the 3rd August, 2001, namely:-
In the said notification, for Table 1, Table 2 and Table 3 the following Tables shall be substituted namely:-
Table 1
Table 2
S. No. Chapter/heading/sub-heading/tariff Description of goods Tariff value US $
item (Per Metric Tonne)
71 or 98 Gold, in any form, in respect 432 per 10 grams
of which the benefit of entries (i.e., no change)
at serial number 321
and 323 of the Notification
No. 12/2012-Customs, dated
17.03.2012 is availed
Silver, in any form, in respect 697 per kilogram
of which the benefit of entries (i.e., no change)
at serial number 322 and 324
of the Notification No.
12/2012-Customs, dated
17.03.2012 is availed
Table-3
S. No. Chapter/heading/sub- Description of goods Tariff value US $ (Per
heading/tariff item Metric Tonne)
1 080280 Areca nuts 1870
According to the appellants, the bill of entry has been assessed on tariff value and duty chargeable thereon has been demanded. However, the
writ petitions have been filed for Mandamus to release the goods on the basis of the valuation as declared by the respondent/importer stating that it
is a transaction value.
Valuation is covered by Section 14 of the Customs Act. For the purposes of Customs Tariff Act, the value of the imported goods and export
goods shall be the transaction value of such goods, that is to say, the price actually paid or payable for the goods when sold for export to India for
delivery at the time and place of importation. However, Section 14(2) provides that if the Board is satisfied that it is necessary or expedient, it may,
by notification in the official gazette, fix tariff values for any class of imported goods or export goods, for the reasons contained therein.
Section 14(2) of the Customs Act, reads as follows:
14(2) Notwithstanding anything contained in sub-section (1), if the Board is satisfied that it is necessary or expedient so to do, it may, by
notification in the Official Gazette, fix tariff values for any class of imported goods or export goods, having regard to the trend of value of such or
like goods, and where any such tariff values are fixed, the duty shall be chargeable with reference to such tariff value
Based on the tariff notification No. 85/2013, dated 21.08.2013, the Customs Department is demanding duty on the tariff value fixed which is
objected to by the respondent/importer. Admittedly, the said notification is not under challenge. The only plea raised by the respondent/importer is
that it is not in consonance with the transaction value. The respondent/importer has to agitate the said issue before the appropriate forum under the
provisions of the Customs Act, if he so desires. For the purpose of release of the goods, the respondent/importer is not entitled to state that
Section 14(2) of the Customs Act does not apply to the present Import and that Section 14(1) has an overriding effect and that duty is payable
only on the transaction value declared by him. This plea cannot be countenanced in view of the non-obstinate clause in Section 14(2).
So long as the said tariff value fixed by the Revenue is not under challenge, the respondent/importer insisting to pay duty on the transaction value
does not arise. It is, however, open to the respondent/importer to challenge the assessment proceedings, if aggrieved in accordance with law. If the
respondent/importer prays for a speaking order, the authority shall issue a speaking order so as to enable the respondent/importer to work out his
remedy as per law.
Insofar as the orders directing release of the goods is concerned, in view of Section 14(2) which has an overriding effect and the notification
85/2013, having not been challenged, it is not open to the respondent/importer to rely upon the earlier orders passed by this Court to seek release
of the goods on payment of 75% of duty demanded and the balance by 25% bond. We find no justification to allow the respondent/importer to
pay balance 25% by way of bond when the duty is payable on the tariff value fixed. Further, the Notification 85/2013, it is stated that this may not
apply to the earlier import of which we do not want to comment at this stage. Taking note of the plea of the respondent/importer that several
orders have been passed by this Court for the release of the goods on payment of substantial duty together with bond and taking note of the
vagaries of nature that is likely to cause severe hardship to the import of Betel Nuts, we are inclined to allow the appeals and modify the orders of
the learned single Judge to safeguard the interest of revenue as well.
The direction to issue show cause notice to the respondent/importer to complete the adjudication does not arise at this point of time, and
therefore, the said portion of the order stands set aside. Accordingly, the writ appeals are allowed and the orders are modified to the extent that
75% of the duty demanded on assessment shall be paid and for the balance 25%, duty demanded by way of bank guarantee. The goods shall be
released on compliance of the above, immediately. Since the assessment has already been made, if there is a request made by the
respondent/importer for passing a speaking order, the authority shall pass a speaking order. Thereafter, the respondent/importer is entitled to
pursue his remedy, in accordance with law. If the order of assessment as and when issued, is not challenged or set aside by competent authority,
the Department can proceed to invoke the Bank guarantee thereafter. No costs. Consequently, connected miscellaneous petitions are closed.