JUDGMENT :

G. S. Kulkarni, J.

The only relief as prayed for in this petition filed under Article 226 of the Constitution of India is for issuance of a writ of mandamus against the Respondents to permit provisional release of the goods in question, namely, ball-bearings, being subject matter of Bill of Entry No.5681804 dated 2nd October 2021, under the provisions of Section 110A of the Customs Act, 1962, pending adjudication of the show cause notice dated 22nd April 2022.

2. The Petitioner is a proprietorship concern of Smt. Rizu Kalra. On 2nd October 2021, under the Bill of Entry as noted above, the Petitioner had imported ball-bearings. On the basis of information, an enquiry/investigation was initiated by the Respondents in regard to the import of such goods. Statements of certain persons were recorded and the goods in question were seized. On 22nd April 2022, a show cause notice was issued to the Petitioner inter alia alleging that the Petitioner has undervalued the imported goods, subject matter of the above-referred bill of entry as also in respect of past 13 bills of entry. It was opined that the declared value of the goods was liable to be rejected in terms of Explanation 2(iii)(a) to Rule 12 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007.

3. In the above circumstances, the Petitioner addressed letters on 17th December 2021, 13th May 2022, 6th June 2022, and thereafter, five more letters dated 14th June 2022, 17th August 2022, 9th February 2023, 22nd February 2023 and 21st July 2023 to the concerned officer requesting that the Petitioner be granted provisional release of the goods. Also, the Petitioner filed an interim reply to the show cause notice. We may observe that despite the Petitioner repeatedly knocking the doors of Respondent No.2 (Commissioner of Customs) by such several letters, not a single letter was replied by Respondent No.2. The Petitioner, in her letters, had categorically stated that the Petitioner was willing to secure the revenue in demanding provisional release. However, as none of the request/applications were responded, and that the Respondents having failed to discharge their statutory duty in responding to the Petitioner's applications/representations, for the release of the goods on provisional basis, as a last resort, the Petitioner has filed the present petition on 7th August 2023 praying for the following substantial reliefs:

a. That this Hon’ble Court may be pleased to issue a writ of Mandamus or any other appropriate writ or order directing the Respondents to allow clearance of the ball-bearings on provisional basis under Section 110A of the Customs Act, 1962 pending adjudication of Show cause notice dated 22-4- 2022.

b. Pending the hearing and final disposal of the petition, the Respondents may be directed to release the goods imported vide Bill of Entry No.5681804 dated 2-10-2021 on provisional basis pending adjudication.”

4. We had heard the parties on 28th August 2023 when at the request of Mr. Adik, learned Counsel for the Revenue, considering the peculiar facts to enable him to take instructions, the proceedings were adjourned for today. Our order dated 28th August 2023 has some relevance, it is, hence, required to be noted, which reads thus:

“1. In the present proceedings the seizure is dated 21st December, 2021 of a consignment of ball bearings by the Customs. Show cause notice came to be issued to the Petitioner on 22nd April, 2020 under Section 124 r/w Section 28 of the Customs Act. A reply to the show cause notice was submitted on 27th June, 2022. However, till date the same has not been adjudicated. In such circumstances, Mr. Shah, learned counsel for the Petitioner would submit that the provisions of sub-section (9) of Section 28 stands clearly triggered. He submits that the show cause notice itself has become inoperative and/or cannot be adjudicated by virtue of the bar as created by sub-section (9) of Section 28.

2. It is in these circumstances, the