- (1.) The original relief claimed in the writ-petition becomes obliterated because of the subsequent events as it stood proceeds on the basis that despite having filed bills of entry, the determination of the duty and the clearance of the goods are not allowed on the basis of Port Circulars issued by the respondent No. 2 i.e. Commissioner of Customs (Port), Kolkata in the first week of April 2014. A mandamus was sought commanding the respondent to forthwith make and complete the final assessment of the customs duty and to grant release of the imported goods on the basis of the bills of entry. The dispute, which would be evident from the writ-petition, relates to 28 bills of entry where the import is made on the basis of the authorization license.
(2.) In the affidavit-in-opposition, the Port Authority took the stand that the petitioner submitted 26 bills of entry and not 28 bills of entry as claimed in the writ-petition. It is specifically pointed out therein that there is a duplication of two bills of entry, which is not permissible under the law. It is discern from the statements disclosed in the opposition that 12 bills of entry out 26 bills of entry are shown as 'out of charge' meaning thereby the goods have already been given clearance by the department. Out of the balance 14 bills of entry, 8 such bills of entry have already been assessed and the clearance under the licensee has been allowed by the department. So far as these bills of entry are concerned, the petitioner has not paid the duty in respect of 2 bills of entry and so far as the 4 bills of entry are concerned, a query is raised by the department but no replies have been given by the petitioner. So far as the 8 bills of entry for which assessment and clearance has already been given, it is stated that in terms of the procedures laid down by the Central Port of Excise and Customs, the goods are required to be presented before the Appraisal Officer for verification and/or examination before they are allowed to pass for clearance.
(3.) It would be pertinent to record that the writ-petition was affirmed on April 11, 2014 and the opposition filed by the Port Authorities was affirmed on June 3, 2014. There is no whisper in the opposition about the confiscation and/or seizure of the goods and an inference can readily be inferred that the decision of confiscation and seizure was not taken as on date of the affirmation of the opposition. While the matter was proceeding before this Court, the petitioner points out that the authorities have assessed the goods and an opportunity was given to the petitioner to bring those facts on record by way of supplementary affidavit. The Port Authorities were permitted to file the counter-affidavit to the supplementary affidavit wherein it is stated - a letter dated April 21, 2014 was issued by the petitioner showing their inability to pay the duty so assessed citing the financial stringency. In the said letter, the petitioner proposed to the authorities to keep the part of the cargo for a value of Rs. 32 Crores and interest out of the total cargo valued at Rs. 360 Crores as security towards the past duties. It is a specific stand of the customs authority that upon receiving the said letter a bona fide impression is created over the evasion of the duty and the order of seizure is passed. It would be apt and relevant to quote the relevant portion of such statement from the counter-affidavit filed by the Port Authority which runs as follows:-- "After receiving the said letter the respondents had reasons to believe that there is an evasion of duty on the part of the petitioner company and therefore, the respondent authorities seized the goods on 13th May, 2014 in accordance with law which has been mentioned in the affidavit-in-opposition.";