Mangal Polysil vs Assistant Commissioner of Customs

Rule. Heard forthwith.

Pursuant to the provisional assessment, the goods identified as Silicon Rubber were released on the Petitioner furnishing a Test Bond of Rs. 3,76,499/-. The impugned order indicates that the Petitioner was given hearing on 18-12-2006. The Petitioner had sought time to produce the manufacturer''s test report. However, they failed to do so. The Petitioner produced the report of subsequent consignment. The Tribunal rightly held that the same could not be accepted.

The grievance of the Petitioner is that various documents were considered in passing the order without making the said documents available. It is submitted that the principles of natural justice and fair play have been violated. Before any material could have been used adverse to the Petitioner, it was incumbent on the authority to make the said material available. That has not been done. It is submitted that on this count alone the impugned order is liable to be set aside.

On the other hand, on behalf of the Respondents, the learned Counsel submits that against the order of assessment, there is an alternative remedy of statutory appeal. The Petitioner has not availed of the said opportunity. Apart from that, it is submitted that the order is of 2-2-2007 and the Petitioner filed the Writ Petition only in the year 2009 i.e. more than two years thereafter. Therefore, on both the grounds of alternative remedy and laches, the petition ought to be dismissed.

Insofar as the first submission is concerned, on behalf of the Petitioner it is submitted that the mere ground of appeal is no answer to this Court exercising writ jurisdiction if on the face of it the order suffers from the violation of principles of natural justice and fair play. Insofar as the second submission is concerned, it is pointed out that the order is not received by them since they were in the course of shifting office and the impugned order visits them with civil consequences inasmuch as the bond executed by the Petitioner was for Rs. 3 lakhs and odd and the amount assessed is in the sum of Rs. 18 lakhs. It is submitted that they came to know for the first time the order pursuant to the communication dated 5-12-2008.

Having heard the learned Counsel for the parties, in our opinion, this is a fit case for this Court to exercise its extraordinary jurisdiction considering that material has been used against the Petitioner which was not disclosed. In the light of that we pass the following order:

The impugned order dated 29-1-2007 is set aside. The Respondents are directed to make available to the Petitioner the documents relied upon and set out in the impugned order and after giving an opportunity to the Petitioner to have their say, pass appropriate order according to law. We make it clear that opportunity is limited to what we have set out in the order.

Rule made absolute accordingly. No order as to costs.