The effective date of a notification under Section 25(4) of the Customs Act is the date of its publication in the Official Gazette in e-mode.

JUDGMENT :

SONIA GOKANI, J.

1. Issues involved are identical and therefore, both the petitions are being decided by a common judgment and order where the relevant facts for adjudication are essentially drawn from the Special Civil Application No.8057 of 2020.

2. By way of the present petition, the petitioner seeks following relief :

“7…

(A) Your Lordships may be pleased to issue a writ of certiorari, or a writ in the nature of certiorari or any other appropriate, writ order or direction quashing order of reassessment of bills of entry No.5407944 and 5407946 ‘Annexure B (Colly);

(B) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondent No.3, his servants and agents to return/refund the differential amount of duty paid by the petitioner company being Rs.72,15,893/- regarding bill of entry No.5407944 and Rs.72,15,611/- regarding bill of entry No.5407946;

(C) Your Lordships may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other writ, order or direction quashing order in appeal No.KDLCUSTM- 0000-APP-07 to 071-18-19 dated 21.1.2019 (Annexure-A);

(D) Pending hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondent No.3, his servants and agents to return/refund the differential amount of duty paid by the petitioner company being Rs.1,44,31,505/- regarding bill of entry No.5407944 and Rs.1,44,31,505/- regarding bill of entry No.5407946 on such terms and conditions as this Hon’ble Court thinks fit;

(E) an ex parte ad interim relief in terms of para 7 (D) may kindly be granted;

(F) any other further relief as may be deemed fit in the facts and circumstances of the case may also be granted.”

3. Brief facts leading to the present petition are as follow:

3.1 The petitioner company is engaged in the manufacture of different types of edible oils, acid oil, soya gum, deo distillate, etc. The petitioner imports edible oils on the regular basis, it is registered under the Customs Act, 1962 (‘the Act’ hereinafter) and holds Registration Number 0899000363.

3.2 Aggrieved by the order in original passed by the respondent No.2, the petitioner has challenged the reassessment of bills of entry No.5407944, 5407946 and 5404574. According to the petitioner, it is a non-speaking and unreasoned order coupled with the fact that it is contrary to the provisions of Section 17 (5) of the Act. There are series of decisions which favour the assessee - petitioner and the same shall have to be an express order.

3.3 It is the say of the petitioner that following the requirement of fulfilling the fundamental rights to put a defence against the claim of the customs department, the respondent No.2 in an appeal No.KDL-CUSTM-000-APP-053 TO 054-18-19 dated 28.11.2018 remanded the matter to the adjudicating authority for examination of various details and then to pass a speaking order following the principles of natural justice. The delay is of 39 days in filing the appeal and as the appellate authority is not empowered to condone the delay, present petition has been preferred by the petitioner.

3.4 In case of PANOLI INTERMEDIATE (INDIA) PRIVATE LIMITED VS. UNION OF INDIA, reported in 2015(326) ELT 532 while interpreting pari materia provision under Central Excise Act, 1944, the Court has held that in exceptional cases where gross injustice is satisfactorily demonstrated, under Article 226 of the Constitution of India, the Court can exercise the power of the writ of certiorari.

3.5 It is specifically the case of the petitioner that adjudication by the authority of the bill of entry is in violation of the principles of natural justice and in contravention of provision of Section 17(5) of the Act. The delay is unintentional, it had continued to correspond with the customs department and therefore, it has not slept over its right and hence, this petition.

4. Affidavit-in-reply has been filed by t