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SYSKA LED Lights Pvt. Ltd vs. UOI (Bombay High Court)
April, 05th 2021

Customs Act: It is a settled proposition that when a law requires a thing to be done in a particular manner, it has to be done in the prescribed manner and proceeding in any other manner is necessarily forbidden. An order is vitiated if it is passed in violation of the principles of natural justice. Where there is a breach of principles of natural justice, existence of an alternate remedy of appeal would be no bar to exercise of jurisdiction under Article 226 of the Constitution of India

 

Heard Mr. Prithviraj Choudhari, learned counsel for the
petitioner and Mr. Pradeep S. Jetly, learned senior counsel for the
respondents.
2. By filing this petition under Article 226 of the Constitution of
India, petitioner seeks quashing of order dated 23.09.2020 passed by the

 


Joint Commissioner of Customs, Gr. VA, Nhava Sheva-V i.e., respondent

 


No.3 and further seeks a direction to the respondents to release the
imported goods of the petitioner covered by Bill of Entry No.8311310
dated 28.07.2020.
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3. Case of the petitioner is that it is a private limited company
registered under the Companies Act, 1956 and primarily engaged in the
business of import and manufacture of light products.
4. Petitioner had imported smart plugs vide Bill of Entry
No.8311310 dated 28.07.2020. It is stated that the imported smart plugs
are used for extension socket purposes and since the same does not generate
any wi-fi or bluetooth signal, petitioner claims that no import licence from
the Wireless Procurement Cell, Department of Information and
Technology, Government of India was required. Petitioner also got the
product tested to certify that the technical features of the product did not
fall under licensing requirement.
5. Notwithstanding the above, the apprising officers raised
objection regarding requirement of import licence with respect to the
imported products. Petitioner agreed for a first check examination of the
same which was carried out in the presence of the authorised representative
of the petitioner. During the said examination neither any objection was
raised nor any inconsistency was found. Despite the above, at the

 


insistance of officers serving in the office of Joint Commissioner of
Customs, Nhava Sheva-V i.e. respondent No.3, petitioner furnished three
declarations dated 02.09.2020 certifying the truth and veracity of all the
declarations. Thereafter office of respondent No.3 vide letter dated
14.09.2020 scheduled a personal hearing on 18.09.2020 through video
conferencing which was attended by the authorised representative of the
petitioner. The authorised representative told respondent No.3 that all the
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three declarations were already provided to the apprising officers and
therefore requested that the imported goods be released forthwith.
However, no recording of personal hearing was communicated to the
petitioner.
6. Thereafter respondent No.3 passed the impunged order in
original dated 23.09.2020 rejecting the unit price of the goods as declared

 


by the petitioner and directed that the same be redetermined at USD
13.66097 (C/F value) and USD 22.02365 (C/F value). Accordingly,
petitioner was directed to pay the resultant differential duty along with
applicable interest under section 28AA of the Customs Act, 1962 (briefly
“the Customs Act” hereinafter). As a consequence, respondent No.3
confiscated the imported goods under section 111(m) of the Customs Act
but gave an option to the petitioner to redeem the confiscated goods upon
payment of redemption fine of Rs.4,00,000.00 under section 125 of the
Customs Act, further imposing penalty of Rs.1,90,000.00 under section
112(a) of the Customs Act.
7. Aggrieved by the aforesaid order in original dated 23.09.2020
and assailing the same primarily on the ground that it was passed in gross
violation of the principles of natural justice, the present writ petition came
to be filed.
8. By order dated 06.10.2020, this Court had issued notice. On
the next date i.e. on 29.10.2020, liberty was granted to the petitioner to
amend the prayer portion of the writ petition and also to file interim
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application for release of the imported goods.
9. Thereafter petitioner had carried out the amendments in the
writ petition including amendment in the prayer portion which reads as
under :-
“iii. direct the Respondents itself, its officers, subordinates,
servants and agents to release the goods imported vide Bill of
Entry No.8311310 dated 28.07.2020 subject to the
Applicant furnishing a Bank Guarantee of the amount of
Customs Duty declared in the said Bill of Entry No.8311310
dated 28.07.2020 and the redemption fine and penalty
imposed under impugned order dated 23.09.2020 passed by
Respondent No.3.”
10. On 03.11.2020 this Court after hearing learned counsel for the
parties took the view that it would be in the interest of justice if interim
relief was granted to the petitioner making it clear that such relief would be
subject to outcome of the writ petition. Accordingly, interim relief in terms
of prayer clause 23(c)(iii) which has been extracted above was granted.
11. Respondents have filed reply affidavit through Shri. Rajesh
Kumar Mishra, Commissioner of Customs, Nhava Sheva-V, Jawaharlal
Nehru Customs House, Nhava Sheva. At the outset, a preliminary
objection has been raised that against the impugned order in original there
is a statutory remedy of appeal as provided under section 128 of the
Customs Act before the Commissioner (Appeals). Therefore, the writ
petition should be dismissed on the ground of petitioner not availing the
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alternative remedy as provided under the statute. The allegation that there
has been gross violation of the principles of natural justice has been denied.
It is stated that initially a query was raised by the office of respondent No.3
on 30.07.2020 and in response thereto petitioner submitted a declaration
(dated ‘nil’) that the imported product was smart plug used for extension
socket purpose. It was stated that as the product did not generate
bluetooth/wi-fi signals, no import licence from the Wireless Procurement
Cell was necessary. Customs department was not satisfied with the above
submission. This led to petitioner asking for first check vide letter dated
03.08.2020. Accordingly, the Bill of Entry was examined on first check
basis on 03.08.2020 following which a query was again raised on
05.08.2020 for submission of representative sealed sample.
11.1. On verification of the representative sealed sample, it was
observed that the imported goods attracted Equipment Type Approval
(ETA) compliance and that declared value of the goods also appeared to be
low. This was orally informed to the petitioner. In response thereto,
petitioner made declaration dated 02.09.2020 stating that the imported
products exclusively operate in license bands and comply with the technical
parameters. Price mentioned was fair and correct. On the basis of the
aforesaid submission, the importer (petitioner) requested respondent No.3
to consider its prayer and to clear the goods. However, respondent No.3
was not satisfied with the submission of the petitioner with regard to
valuation of the goods and accordingly a personal hearing was given vide
letter dated 16.09.2020.
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11.2. Importer (petitioner) was also informed about compliance of
Equipment Type Approval (ETA) and requirement of licence from the
Wireless Procurement Cell, in response to which petitioner initially misled
the customs department by writing that Equipment Type Approval (ETA)/
licence from Wireless Procurement Cell is not applicable for the goods.
After examining the representative sealed sample, petitioner was informed
that the declared value of the goods was low. Therefore, it is quite clear that
petitioner was well informed of the allegations prior to passing of the
impugned order in original dated 23.09.2020.
11.3. It is stated that petitioner was given due opportunity of
personal hearing and based on its submission and request the impugned
order in original was passed. In the facts and circumstances of the case, it
cannot be said that there was violation of the principles of natural justice,
thus leading to infringement of Article 14 of the Constitution of India.
Impugned order in original is a well reasoned one and was passed by
respondent No.3 within jurisdiction. In the circumstances, respondents
seek dismissal of the writ petition.
12. Learned counsel for the petitioner has referred to paragraphs
10, 11 and 12 of the writ petition as well as to the impugned order in
original dated 23.09.2020 and submits that the same was passed in
violation of section 124 of the Customs Act inasmuch as no show-cause
notice was issued to the petitioner before the order of confiscation was
passed by way of the impugned order in original. He has also referred to
Rule 12 of the Customs Valuation (Determination of Value of Imported
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Goods) Rules, 2007 to contend that in the event of any dispute as to the
value of imported goods as declared the proper officer has to intimate the
importer in writing about the grounds for doubting the truth or accuracy of
the value and provide a reasonable opportunity of being heard before
taking a final decision. In the instant case neither any show-cause notice
was issued nor any intimation was given to the petitioner in writing about
the grounds for doubting the truth or accuracy of the declared value of the
imported goods. No reasonable opportunity of being heard was provided to
the petitioner before passing the impugned order in original dated
23.09.2020. Learned counsel for the petitioner has submitted a
compilation of documents and case laws. Particularly reliance has been
placed on the decision of this Court in Forbo Siegling Movement Systems
India Pvt. Ltd. Vs. Union of Inida, 2013(296) E.L.T. 443. He therefore
submits that when there is violation of the principles of natural justice writ
jurisdiction is available to the affected party who cannot be relegated to the
appellate forum.
13. On the other hand, Mr. Pradeep S. Jetly has referred to the
reliefs sought for by the petitioner. In so far challenge to the impugned
order in original dated 23.09.2020 is concerned, he submits that the said
order is clearly an appealable order. Under section 128 of the Customs Act
appeal against the said order in original would lie before the Commissioner
of Customs (Appeals). In such circumstances he submits that this Court
may not entertain the writ petition and instead relegate the petitioner to the
forum of appeal.
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14. Submissions made by learned counsel for the parties have
received the due consideration of the Court.
15. Basic grievance of the petitioner is to the impugned order in
original dated 23.09.2020 passed by respondent No.3. However, as per
order of this Court dated 03.11.2020 the imported goods have been
released on petitioner furnishing bank guarantee for the amount of customs
duty declared in the Bill of Entry No.8311310 dated 28.07.2020 as well as
covering the redemption fine and penalty imposed vide the impugned
order in original dated 23.09.2020.
16. From a perusal of the impugned order in original, it is seen
that petitioner filed Bill of Entry No.8311310 dated 28.07.2020 for the
imported goods declaring two varieties of smart plug having unit price of
USD 4.13 and 5.036 respectively. The declared total assessable value was
Rs.63,13,410.40 and the duty thereon was Rs.19,55,895.00. The
impugned order in original records that a personal hearing was held on
18.09.2020 through the mode of video conferencing which was attended
by the authorized representative of the petitioner Shri. Ganesh Kumar.
Respondent No.3 took the view that the imported goods were under valued
and that it was required to be redetermined under the Customs Valuation
(Determination of Value of Imported Goods) Rules, 2007. Upon redetermination,
he held that the value of the two varieties of the imported
goods would be USD 13.66097 and USD 22.02365. Thus he opined that
the importer (petitioner) attempted to clear goods by submitting false
declarations and under valueing the goods rendering the goods liable for
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confiscation under section 111(m) of the Customs Act besides being liable
for penalty under section 112(a) of the Customs Act. Thereafter the
following order was passed :-
“14. I reject the unit price of the goods declared as –
‘SYSKA-MWP-002-BPLEDSL24W(Smart Plug) at USD
4.13 (FOB value) and ‘SYSKA-MWP-003-
BPLEDSL24W(Smart Plug)’ at USD 5.036 (FOB value) by
the importer. I order the same to be re-determined as USD
13.66097(CIF value) and USD 22.02365(CIF value)
respectively (as detailed in the Table A). I order the importer
to pay resulting differential duty thereon along with
applicable interest under Section 28AA of the Customs Act,
1962. The bill of entry may be assessed accordingly.
15. I confiscate the goods imported vide subject bill
of entry No.8311310 dated 28.07.2020 under Section
111(m) of the Custom Act, 1962. However, I given an
option to redeem the same upon payment of redemption fine
of Rs.4,00,000/- (Rupees Four Lacs only) under Section 125
of the Custom Act, 1962.
16. I impose a penalty of Rs.1,90,000/- (Rupees one
Lac Ninety Thousand only) under Section 112(a) of the
Customs Act, 1962 on the importer M/s. Syska LED Lights
Pvt. Ltd. for their said acts of omission and commissioner.
17. This order is issued without prejudice to any
other action that may be initiated against the above
mentioned notice/firm or any other person under the
provisions of the Customs Act, 1962 or any other law for the
time being in force in India.”
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17. Though the goods were confiscated, option was given to the
petitioner to redeem the same on the payment of redemption fine, besides
imposing penalty.
18. Confiscation of goods is dealt with in section 111 of the
Customs Act. However, section 124 of the Customs Act provides for issue
of show-cause notice before confiscation of goods, etc.. Section 124 of the
Customs Act reads as under :-
“SECTION 124. Issue of show cause notice before
confiscation of goods, etc.-
No order confiscating any goods or imposing any penalty on
any person shall be made under this Chapter unless the
owner of the goods or such person –
(a) is given a notice in writing with the proper
approval of the officer of Customs not below the
rank of an Assistant Commissioner of Customs,
informing him of the grounds on which it is
proposed to confiscate the goods or to impose a
penalty;
(b) is given an opportunity of making a
representation in writing within such reasonable
time as may be specified in the notice against the
grounds of confiscation or imposition of penalty
mentioned therein; and
(c) is given a reasonable opportunity of being
heard in the matter:
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Provided that the notice referred in clause (a) and the
representation referred to in clause (b) may, at the request of
the person concerned be oral:
Provided further that notwithstanding issue of notice under
this section, the proper officer may issue a supplementary
notice under such circumstances and in such manner as may
be prescribed.”
19. From the above, it is quite evident that mandate of section 124
is that no order confiscating any goods or imposing any penalty on any
person shall be made unless the owner of the goods or such person is given
a notice in writing informing him of the grounds on which it is proposed to
confiscate the goods or to impose the penalty and further the owner of the
goods or such person must be given an opportunity of making a
representation in writing within such reasonable time as may be stated in
the notice against the grounds of confiscation or imposition of penalty and
finally the owner of the goods or such person is given a reasonable
opportunity of being heard in the matter. Thus three conditions are
required to be fulfilled before an order of confiscation is passed or penalty is
imposed. Firstly, the person concerned shall be given a notice in writing
informing him of the grounds on which the goods are proposed to be
confiscated or penalty is proposed to be imposed. Secondly, such person has
to be given an opportunity of making a written representation within
reasonable time against the grounds of proposed confiscation or imposition
of penalty. Lastly, such a person must be given a reasonable opportunity of
being heard. However, as per the first proviso, such a notice and
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representation may be given orally at the request of the person concerned.
20. Admittedly in this case, no notice in writing under section
124(a) of the Customs Act was given to the petitioner before passing the
impugned order in original which not only confiscated the goods but also
imposed penalty on the petitioner. All that the impugned order in original
says is that a personal hearing was given to the authorized representative of
the petitioner on 18.09.2020 through video conferencing. There is
nothing on record to show or indicate that a request was made on behalf of
the petitioner for oral notice or oral representation.
21. We may also refer to Rule 12 of the Customs Valuation
(Determination of Value of Imported Goods) Rules, 2007. Rule 12 reads
thus :-
“12. Rejection of declared value. –
(1) When the proper officer has reason to doubt the truth
or accuracy of the value declared in relation to any imported
goods, he may ask the importer of such goods to furnish
further information including documents or other evidence
and if, after receiving such further information, or in the
absence of a response of such importer, the proper officer still
has reasonable doubt about the truth or accuracy of the value
so declared, it shall be deemed that the transaction value of
such imported goods cannot be determined under the
provisions of sub-rule (1) of rule 3.
(2) At the request of an importer, the proper officer, shall
intimate the importer in writing the grounds for doubting
the truth or accuracy of the value declared in relation to
goods imported by such importer and provide a reasonable
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opportunity of being heard, before taking a final decision
under sub-rule (1).
Explanation.-
(1) For the removal of doubts, it is hereby declared that :-
(i) This rule by itself does not provide a
method for determination of value, it provides a
mechanism and procedure for rejection of declared
value in cases where there is reasonable doubt that
the declared value does not represent the
transaction value; where the declared value is
rejected, the value shall be determined by
proceeding sequentially in accordance with rules 4
to 9.
(ii) The declared value shall be accepted where
the proper officer is satisfied about the truth and
accuracy of the declared value after the said
enquiry in consultation with the importers.
(iii) The proper officer shall have the powers to
raise doubts on the truth or accuracy of the
declared value based on certain reasons which may
include –
(a) the significantly higher value at which
identical or similar goods imported at or
about the same time in comparable quantities
in a comparable commercial transaction were
assessed;
(b) the sale involves an abnormal discount or
abnormal reduction from the ordinary
competitive price;
(c) the sale involves special discounts limited to
exclusive agents;
(d) the misdeclaration of goods in parameters
such as description, quality, quantity, country
of origin, year of manufacture or production;
(e) the non declaration of parameters such as
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brand, grade, specifications that have
relevance to value;
(f) the fraudulent or manipulated documents.”
22. A careful perusal of Rule 12 as extracted above would go to
show that if the proper officer has reason to doubt the truth or accuracy of
the value declared in relation to any imported goods, he may ask the
importer of such goods to furnish further information and at the request of
the importer shall intimate the importer in writing the grounds for
doubting the truth or accuracy of the value declared in relation to imported
goods and provide a reasonable opportunity of being heard, before taking a
final decision.


23. From a reading of the impugned order in original, it does not
appear that the procedure laid down for rejection of declared value and
redetermination of value was followed.
24. It is a settled proposition that when a law requires a thing to be
done in a particular manner, it has to be done in the prescribed manner and
proceeding in any other manner is necessarily forbidden.
25. Thus, from the above, it is quite evident that the impugned
order in original stands vitiated due to statutory infraction as above leading
to violation of the principles of natural justice thereby vitiating the
impugned order-in-original.
26. On the submission of Mr. Pradeep S. Jetly, learned senior
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counsel for the respondents as to availability of alternative remedy, we may
refer to the decision of this Court in Forbo Siegling Movement Systems
India Pvt. Ltd. (supra). That was also a case where challenge was made to an
order passed by the Deputy Commissioner of Customs assessing the bills of
entry under Rule 9 of the Customs Valuation (Determination of Value of
Imported Goods) Rules, 2007 read with section 14 of the Customs Act
after making an addition to the declared value. After noting that such an
order was subject to an appeal under section 128(1) of the Customs Act
and also examining the provisions of Rule 12, it was held as under :-
“10. The explanation to Rule 12 makes it clear that the rule
does not by itself provide a method for determination of
value but it provides a mechanism and procedure for
rejection of declared value in cases where there is reasonable
doubt that the declared value does not represent the
transaction value. Where the declared value is rejected, the
value has to be determined by proceeding sequentially in
accordance with Rules 4 to 9. In the present case, the
grievance of the petitioners turns upon an alleged noncompliance
of the provisions of sub-rules (1) and (2) of Rule
12.
11. Under sub-rule (1) of Rule 12, when the proper officer
has reason to doubt the truth or accuracy of the value
declared in relation to any imported goods, he may ask the
importer of such goods to furnish further information. This
information sought may include documents or other
evidence. If, after receiving such further information, or in
the absence of a response of the importer, the proper officer
still has reasonable doubt about the truth or accuracy of the
value so declared, it shall be deemed that the transaction
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value of such imported goods cannot be determined under
the provisions of sub-rule (1) of Rule 3. Sub-rule (2) of Rule
12, provides that at the request of an importer, the proper
officer shall intimate to the importer in writing the grounds
for doubting the truth or accuracy of the value declared in
relation to goods imported by the importer and provide a
reasonable opportunity of being heard, before taking a final
decision under sub-rule (1). Explanation (ii) to Rule 12
posits an enquiry in consultation with the importer. The
subordinate legislation has expressly incorporated norms
requiring observance of the principles of natural justice.
12. The provisions of Rule 12 contain the procedure which
the proper officer is required to follow before rejecting the
declared value. In the first instance, when the proper officer
has reason to doubt the truth or accuracy of the value, he
may ask the importer to furnish further information
including documents or other evidence. If upon a scrutiny of
the information he is satisfied with the transaction value
declared, then in such a case the provisions of Rule 3(1)
would come into operation. On the other hand, if the
importer fails to supply information or if the proper officer
still has reason to doubt the truth or accuracy of the value
declared despite the information, sub-rule (2) requires him to
intimate the importer in writing of the grounds for doubting
the truth or accuracy of the value declared, on the request of
the importer. The object of doing so is to enable the
importer to have a fair opportunity to meet the grounds of
doubt entertained by the proper officer. Rule 12(2)
stipulates a requirement of a reasonable opportunity of being
heard. Such an opportunity can have meaning only if the
importer is apprised of the grounds on the basis of which the
transaction value is doubted by the proper officer. In the
absence of a disclosure of the grounds on which the doubt is
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entertained, the importer would not know of the case against
him nor would he be in a position to explain why the doubt
which the proper officer entertains as to the truth or accuracy
of the value is incorrect. Hence, before the proper officer
proceeds to reject the declared value, he is under a mandate
to furnish the grounds in writing for doubting the truth or
accuracy of the value declared by the importer. Thereupon
the importer must have a reasonable opportunity of being
heard to enable him to urge such submissions as he may
desire in writing in regard to the grounds which are set out by
the proper officer. That is the scheme.
13. In the present case, as the record before the Court
would indicate, the procedure which is laid down in Rule 12
was not followed. The proper officer initially called upon the
importer to submit documentary material. This was in
compliance with the requirements of Rule 12(1). Upon
scrutinising the material, evidently the proper officer had
reason to doubt the truth or accuracy of the transaction value
declared by the importer. The proper officer was required to
formulate the grounds on which he entertained a doubt in
writing and to furnish them to the importer. The importer
had no opportunity to call upon the proper officer to disclose
the grounds because the record would indicate that after the
importer submitted a letter dated 25 February, 2013, the
Deputy Commissioner of Customs proceeded to dispose of
the case by passing the impugned order, dated 19 March
2013. By failing to inform the importer of the grounds of his
doubt and of allowing the importer an opportunity of being
heard with reference to those grounds, there has been a clear
breach of principles of natural justice.
14. We are not inclined to accede to the submission of
Counsel appearing on behalf of the respondents that the
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petitioners should be relegated to the remedy of an appeal in
these circumstances. There has been a clear breach of the
principles of natural justice by the failure on the part of the
Deputy Commissioner of Customs to follow the mandatory
requirement of Rule 12. The existence of an alternate
remedy of an appeal is not a bar to the maintainability of a
petition under Article 226 of the Constitution where there is
a breach of the principles of natural justice. Moreover, the
mere existence of an appellate remedy, it is well settled,
would not remedy a breach of the principles of natural justice
at the original stage. We also take serious note of the
statement made in the affidavit in reply to the effect that
even if this Court would direct the Deputy Commissioner of
Customs to issue a notice to show cause, the grounds of the
notice would be the same as those contained in the
impugned order and that the quasi judicial order which the
authority would pass would be the same as the Order-in-
Original, dated 19 March 2013. This is clearly indicative of
the fact that the Deputy Commissioner of Customs has a
closed mind and treats a compliance with the principles of
natural justice as a mere formality. Hence, while we are
inclined to set aside the impugned order and remit the
matter back for fresh decision after complying with the
requirements of Rule 12, we direct the Commissioner of
Customs to assign the case to some other officer, other than
the officer by whom the impugned order is passed. We
record our disapproval of the manner in which the affidavit
in reply has been drafted. Counsel for the Revenue, in fact,
stated during the hearing that the aforesaid addition was
made by the Deputy Commissioner of Customs on his own
accord, without reference to Counsel, and even suggested
that the offending party may be expunged.”
27. Thus this Court held that where there is a breach of principles
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of natural justice, existence of an alternate remedy of appeal would be no
bar to exercise of jurisdiction under Article 226 of the Constitution of
India.
28. In the light of the discussions made above, we are of the
unhesitant view that the impugned order in original is clearly unsustainable
in law being in violation of the principles of natural justice as well as the
statutory provisions as alluded to hereinabove. In the circumstances,
relegating the petitioner to the forum of appeal does not arise.
29. Consequently, we set aside the impugned order in original
dated 23.09.2020 and direct that the proper officer may proceed with the
matter afresh, if he is so inclined, by following the mandate of section 124
of the Customs Act and Rule 12 of the Customs Valuation (Determination
of Value of Imported Goods) Rules, 2007. We further direct that
respondent No.2 shall assign the hearing to a proper officer other than
respondent No.3, who had passed the impugned order in original.
30. Writ petition is accordingly allowed to the extent indicated above.
However, there shall be no order as to cost.

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