Page 158 - ELT_1_1st April 2020_Vol 372_Part

44 EXCISE LAW TIMES [ Vol. 372

owner thereof, for examination or testing, or for ascertaining the value
thereof, or for any other purpose of this Act.
(2) After the purpose for which a sample was taken is carried out,
such sample shall, if practicable, be restored to the owner, but if the owner
fails to take delivery of the sample within three months of the date on
which the sample was taken, it may be disposed of in such manner as the
Principal Commissioner of Customs or Commissioner of Customs may di-
rect.
(3) No duty shall be chargeable on any sample of goods taken under
this Section which is consumed or destroyed during the course of any test
or examination thereof.”
Emphasis Supplied.
It has not been disputed between the parties that admittedly the samples
can only be and were drawn under Section 144 of the Act. It is further evident
that samples can be drawn only before the imported goods are cleared/removed
from the Customs area.
7. Respondents No. 1 & 2 have filed the written statement dated 16-12-
2016 and after the written statement, additional reply dated 19-10-2018 has also
been filed, wherein, effort has been made to demonstrate that the DRI Officers
had authority to take action under the notification from time to time so as to au-
thorise drawing of samples even subsequent to clearance of goods. The stand
taken by the respondents can be summed up as under :-
“It has been pleaded that now keeping in view the fact (as has been re-
vealed by the petitioner by way of filing the writ petition and vide its letter
dated 5-12-2016) that the material detained from their premises on 11-8-
2016 had been actually imported by the petitioner vide five Bills of Entry,
decision has been taken to draw fresh representative samples from each
import consignment for re-testing from CRCL, New Delhi. The respondents
further come on to state that one sample drawn earlier, did not seem to suf-
fice the purpose in changed scenario.”
8. We have heard Learned Counsel for the parties and are persuaded to
accept the legal plea raised by the petitioner.
9. As per the Scheme of the Customs Act, 1962, an importer in terms of
provisions of Section 46 has to file Bill of Entry for the clearance of imported
goods. The Proper Officer/Customs Authorities, if upon examination is satisfied
with the declaration qua the description and valuation of the goods made by an
importer in the Bill of Entry, may frame assessment under Section 17 of the Cus-
toms Act, 1962, and upon payment of duty, resulting into clearance of goods,
whereas in case of doubt with respect to description or value of goods, provi-
sional assessment under Section 18 of the Customs Act, 1962, may be made and
the goods be cleared subject to terms and conditions including final assessment.
The Proper Officer on receipt of test reports or any other information required
has to then frame a final assessment under Section 18(2) of the Customs Act,
1962.
In the present case, at the time of clearance of imported goods, provi-
sional assessment was framed as the declared description of imported goods was
in doubt. The Proper Officer in terms of the provisions of Section 144 of the Cus-
toms Act, 1962, drew samples, while permitting the clearance of goods, after
provisional assessment under Section 18 of the Customs Act, 1962, against a
bond supported with a bank guarantee. Subsequently, upon receipt of the test
EXCISE LAW TIMES  1st April 2020  206