JUDGMENT

YASHWANT VARMA, J.

1. The instant writ petition has been preferred for directions being framed commanding the respondents to finalize the provisional assessment in respect of Bill of Entry1 No. 2894698 dated 12 October 2015, as also to release the Bank Guarantee2 dated 13 July 2016 which had been furnished by the petitioner awaiting finalization of the provisional assessment proceedings. For the purposes of considering the prayers as made it would be apposite to notice the following essential facts.

2. The petitioner is stated to be engaged in the business of import and trading of assorted gold jewellery and holds a valid Importer Exporter Code3. On 13 August 2009, the Agreement on Trade in Goods under the Framework Agreement on the Comprehensive Economic Cooperation4 with the Association of Southeast Asian Nations5, including Indonesia was entered into with India granting preferential treatment to goods imported from ASEAN countries. For purposes of implementing the terms of the FTA, the Customs Tariff [Determination of Origin of Goods under Preferential Trade Agreement between the Government of Members States of the Association of South-East Asian Nations (ASEAN) and the Republic of India] Rules, 20096 came to be notified on 31 December 2009.

3. As per the provisions made in the 2009 Rules, the Certificate of Country of Origin, COO Certificate was to constitute the principal basis for the purposes of extension of preferential treatment. In extension of the FTA, the respondents proceeded to issue Exemption Notifications dated 01 June 2011 and 7 March 2012 granting benefit of “nil” rate of Basic Custom Duty8 on goods falling in Customs Tariff Heading9 7113 19 10 when imported into India from a country listed in Appendix I of those Exemption Notifications. The origin of the imported goods was to be verified in accordance with the 2009 Rules.

4. Undisputedly, the articles which were imported by the petitioner fell within the ambit of CTH 7113 19 10. The import consignment in question was made on 12 October 2015 in terms of the BOE noted hereinabove and comprised of gold bangles of 91.7% purity weighing 27592.140 grams. According to the petitioner the said consignment was duly documented and was supported by the invoice, packing list and other documents issued by the supplier as well as the COO Certificate as contemplated under the 2009 Rules. Despite the imported goods being supported by valid documentation, the fourth respondent on 23 January 2016 invoked the powers conferred by Sections 17 & 18 of the Customs Act, 196210 and evinced its intent to undertake a provisional assessment.

5. The aforesaid opinion was based on the fourth respondent taking the position that the COO Certificates were liable to be verified. However, and in order to obtain immediate release of the imported articles, the petitioner made a prayer for provisional release. While dealing with the aforesaid prayer the fourth respondent required the petitioner to submit a BG and a Bond for an amount equivalent to 100% of the differential BCD.

6. Aggrieved by the aforesaid, the petitioner preferred an appeal before the Commissioner of Customs (Appeals), Kolkata, Commissioner, who on 08 April 2016 passed an order permitting the release of the imported goods by acceptance of 20% of the duty along with a Bond. It was pursuant to the aforesaid order that the petitioner on 19 July 2016 submitted a BG for an amount of Rs. 22,07,264/-, a Bond for an amount of Rs.1,10,36,317/- and also paid Countervailing Duty amounting to Rs. 6,67,936/-. Upon submission of the aforesaid security, the imported articles were provisionally released.

7. However, and as would be evident from the record, the assessment as contemplated was not completed. This constrained the petitioner to address various reminders and representations calling upon the respondents to conclude the provisional assessment proceedings. The aforesaid communications have been enclosed along with the writ petition. Ul