The reasonableness of the delay in issuing show cause notices for assessment and the absence of a specific time period for final assessment under the Customs Act were central to the court's decision.

ORDER

Rajesh Bindal, J. - This order will dispose of two writ petitions bearing CWP Nos. 4134 and 4135 of 2017, as common questions of law and facts are involved therein.

2. Challenge in the writ petition is to the show cause notice issued to the petitioner proposing final assessment on the basis of test reports received.

3. In CWP No. 4134 of 2017, the petitioner imported Zinc Skimming vide Bill of Entry No. 4752691, dated 26-9-2011. The goods were detained. Representative samples were drawn, however, the goods were released provisionally on 1-10-2011. The samples were sent for testing. The report of the laboratory was received on 20-1-2012, whereas the show cause notice for assessment has been issued on 25-1-2017.

4. In CWP No. 4135 of 2017, the petitioner imported Zinc Skimming vide two Bills of Entry Nos. 3137295, dated 6-4-2011 and 4653896, dated 15-9-2011. The goods were detained. Representative samples were drawn, however, the goods were released provisionally on 19-4-2011 and 22-9-2011. The samples were sent for testing. The reports of the laboratory were received on 21-7-2011 and 15-2-2013, whereas the show cause notices for assessment have been issued on 9-2-2017.

5. Learned Counsel for the petitioner submitted that at the time of provisional release of goods whatever amount of duty was assessed, the same was paid.

6. Learned Counsel for the petitioner further submitted that show cause notices issued for assessment deserve to be set aside on short ground of delay in issuance thereof, namely, the same have been issued more than five years after the goods were imported, provisionally assessed and released on payment of duty so assessed. In support of the plea, reliance has been placed upon judgment of this Court in CWP No. 10530 of 2017 - M/s. GPI Textiles Limited v. Union of India and Others, decided on 2-8-2018 [2018 (362) E.L.T. 388 (P & H)].

7. He further submitted that even the reports of testing from the laboratory cannot possibly be relied upon. In fact, zink skimming is a waste product which contains zink metallic as well as oxide form. It is such a product that every sample from one container gives different results. A petition was filed by M/s. Gupta Agri Care v. Union of India bearing CWP No. 7296 of 2014 [2015 (322) E.L.T. 607 (P & H)] seeking a direction for drawing fresh samples for retesting of the detained imported goods. In that case, the laboratory at the first instance had reported that the metallic contents in the sample drawn was 98.5%, whereas the same laboratory in the fresh sample drawn reported the metallic content to be less than 70%. After the receipt of the second report, the proceedings initiated were dropped.

8. It was further submitted that if in any product metallic content is 98.5%, the same would be totally hard, whereas skimming is always semi-solid, difference of which can be made out with naked eyes.

9. Learned Counsel for the petitioner further submitted that though Section 18 of the Customs Act, 1962 (for short, 'the Act'), does not provide for any period for final assessment after the goods have been released on provisional assessment but Chapter 7 of the Board's Manual, provides that the assessment be finalized within six months. He further referred to Section 28 of the Act, which provides for issuance of a notice for recovery of any duty not levied or short levied or erroneously refunded within a period of one year. The period is extendable to five years in case of collusion or wilful misstatement or suppression of facts. The case of the petitioner does not fall in that category.

10. On the other hand, Learned Counsel for the respondents did not dispute the fact that notices have been issued more than five years after the goods were released after provisional assessment, after drawing the samples. However, he submitted that due to the workload in the department some times the assessments are delayed. The same should not yield any benefit to the petitioner as he had misdeclared