AMITAVA LALA, J. - (1.) THE petitioner has filed this writ petition for quashing of the communication dated 17W July, 2008, issued by the respondent No. 2 so far as the same is inconsistent with the provisions of Section 18 of the Customs Act, 1962 read with Customs (Provisional Duty Assessment) Regulations, 1963, and further for directing the respondents to release the consignment imported vide Bill of Entry No. 001860 dated 23rd May, 2008 on provisional basis under the provisions of above section and regulations thereof.
(2.) BY the interim order dated 3rd September, 2008, the petitioner was directed to appear personally before the Assistant Commissioner of Customs, I.C.D. Loni, District Ghaziabad, on 16th September, 2008 and if that date is not convenient to the Assistant Commissioner concerned, he shall fix another date in presence of the petitioner. The petitioner was permitted to be accompanied by an Advocate of his choice, who shall, however, sit at a distance and not interfere with the proceedings, thereby the Court directed him to become an observer. In any event, the Assistant Commissioner was pleased to pass the appropriate order in accordance with law without being influenced with other orders. Subsequently, on 26th September, 2008, the petitioner was directed to appear before the adjudicating authority in terms of the above interim order. The adjudicating authority was directed to pass an order so that if the petitioner is aggrieved, he may approach the higher authority in accordance with law.
(3.) AS and when the matter was called out for the purposes of hearing, Mr. G.L. Rawal, learned Sr. Advocate appearing on behalf of the petitioner, contended before this Court that the order was ultimately passed by the Assistant Commissioner of Customs, I.C.D. Loni, District Ghaziabad on 16th October, 2008. The operative part of the order is as follows: "I have considered the submission made by the importer as well as the facts on record available with the department. In the light of the appropriate sections of the Customs Act, 1962, I find evidence suggesting gross under invoicing of goods in question which makes these goods offending and hence liable for fine and penalty. However pending completion of adjudication process and imposition of fine and penalty goods can be released provisionally under Section 110 (A) of Customs Act, 1962 by the appropriate authority, that is, the Commissioner of Customs, Ghaziabad and hence not within the power of Assistant Commissioner, ICD Loni. Thus in my opinion, this case of provisional release, would be covered under Section 110 (A) of Customs Act, 1962 for which Assistant Commissioner, ICD, Loni is not the competent authority. In the particular circumstance of this case therefore release of the goods provisionally is not covered under Section 18 of Customs Act, 1962 and is liable to be rejected. Accordingly, the importer may file an application under Section 110 (A) of Customs Act, 1962 before the appropriate authority, that is, the Commissioner of Customs, Ghaziabad, for provisional release of the goods." ;