Bombay High Court
Anmol Singh Sethi vs Union Of India Thr The Secretary And Ors on 30 January, 2024
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2024:BHC-AS:5696-DB WP 16179-23.DOC
Mohite
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Digitally
signed by
TRUSHA
TRUSHA TUSHAR
TUSHAR MOHITE
MOHITE Date:
WRIT PETITION NO.16179 OF 2023
2024.02.06
14:37:47
+0530
Shri Anmol Singh Sethi,
25 years, Occ: Business,
Proprietor of M/s.Ideal Impex,
Having office at 1711, 1st Floor,
Outram Lane, Kindsway Camps,
New Delhi - 110 009. ... Petitioner
Versus
1. Union of India
(Through the Secretary,
Ministry of Law and Justice,
Department of Legal Affairs,
Branch Secretariat, Aaykar Bhavan
Annexe, 2nd floor,
New Marine Lines, Mumbai-400020
2. Commissioner of Customs, NS-1,
Jawaharlal Nehru, Custom House,
Nhava Sheva, Raigad - 400 707
3. Additional Commissioner of Customs, NS-1,
Group-2C, Jawaharlal Nehru Custom House,
Nhava Sheva, Raigad - 400 707
4. Assistant Commissioner of Customs, NS-1,
Group-2C, Jawaharlal Nehru Custom House,
Nhava Sheva, Raigad - 400 707 ...Respondents
Mr.S.Jaikumar a/w Mr.Brijesh Pathak for the Petitioner
Mr.Jitendra B. Mishra a/w Mr.Saket R. Ketkar a/w Mr.Ashutosh Mishra
for the Respondents
_______________________
CORAM: G. S. KULKARNI &
FIRDOSH P. POONIWALLA, JJ.
DATED: 30 January, 2024
_______________________
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WP 16179-23.DOC
ORAL JUDGMENT: (PER FIRDOSH P. POONIWALLA, J.)
1. Rule. Rule made returnable forthwith.
2. Heard finally by consent of the parties.
3. In this Writ Petition, filed under Article 226 of the Constitution of
India, the Petitioners have sought the following reliefs:
"(a) to issue Writ of Mandamus or any other appropriate writs,
orders or directions under Article 226 of the Constitution of India
ordering and directing the Respondents their subordinates, servants
and agents to forthwith finalize the assessment and the issue of
classification and thereafter release the goods covered under the Bill of
Entry No. 8560406 dated 31.10.2023, Exhibit-A;
(b) to issue a Writ of Mandamus or any other writ, order or
direction under Article 226 of the Constitution of India calling for the
records pertaining to the Petitioner's case and after going into the
validity and legality of the case and direct the Respondents to issue
Certificate for waiver of demurrage and other charges in terms of Rule
6(1) of Handling of Cargo in Customs Area Regulations 2009, which
were detained and seized;"
4. The Petitioner is carrying on the business of trading in Industrial Oil in
the name of his proprietary concern, M/s.Ideal Impex.
5. It is the case of the Petitioner that he purchased a consignment of
Penetrating Oil from Al Ziba General Trading Co. LLC, UAE. Upon arrival of
the goods in India in six separate containers, the Petitioner filed Bill of Entry
No.8560406, dated 31st October 2023, at the Nhava Sheva Port seeking
clearance of the consignment of six containers. Pursuant to the filing of the
said Bill of Entry, the officers of Rummaging and Intelligence (R & I) issued a
letter to the Container Freight Station (Seabird CFS) directing them to hold
the aforementioned Bill of Entry. The Petitioner was not furnished any reason
for detaining the consignment.
6. Thereafter, the Petitioner was informed that the consignment covered
by the said Bill of Entry was detained at the behest of the officers of the R & I
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WP 16179-23.DOC
Division, Mumbai. It is the case of the Petitioner that the representative of the
Petitioner visited the Officers of the R & I Division, Mumbai and duly
cooperated with the enquiry proceedings conducted by them. Pursuant to the
conclusion of the enquiry, the officers of R & I issued an email dated 22 nd
November 2023 to the Respondents vacating the directions for detaining the
consignments and also informing the officers to complete the appropriate
assessment proceedings on test report of samples.
7. By a further email dated 5 th December 2023, the office of R & I
informed the officers that the earlier instructions issued by them for detaining
the consignments stood vacated.
8. The Respondents, thereafter, drew samples from all the six containers for
the purpose of testing. In respect of six samples drawn by the Respondents,
two reports had been furnished by the testing laboratory: CRCL, JNCH
wherein it was held that the samples did not meet the standards of IS: 1460,
which were mainly composed of Diesel Fractions and did not meet the IS
Standards of Solvents / Kerosene / Kerosene Intermediate / Vacuum Gas Oil /
Gas Oil.
9. It is the case of the Petitioner that the Respondents are seeking to
classify the consignments under Chapter 27 as against the classification
claimed by the Petitioner under Chapter 34. It is also the case of the
Petitioner that his representative had consistently informed the Respondents
that the classification was claimed as per the understanding of the explanatory
notes to the HSN and also that the duty applicable on CTH 34 was higher
than the CTH 27 and that there was no intention to either evade duty or
derive any benefit.
10. It is also the case of the Petitioner that clearance was being allowed of
consignment of identical goods to other importers.
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WP 16179-23.DOC
11. Since there was a delay in clearing the consignment, the Petitioner made
a representation dated 21 st December 2023, requesting the Respondents to
finalize the assessment and allow clearance of the goods for home
consumption.
12. It is the case of the Petitioner that his authorized representative appeared
in the office of the Respondents and explained in detail about the goods being
imported by the Petitioner and also about simultaneous clearance of
consignments being allowed at the Nhava Sheva Port. It is also the case of the
Petitioner that the Respondents were requested to finalise the assessment and /
or release the consignment, as the failure to do so was causing grave prejudice
to the Petitioner.
13. In response, it is the submission of the Respondents that the
Investigating Agency, namely R & I, HQRS, Preventive Commissionerate,
Mumbai Zone-II, had investigated imports made by the Petitioner declaring
the goods as "Penetrating Oil-60" vide Bill of Entry No.8511565 dated 28 th
October 2023. The investigation had revealed that the imported goods were
mis-declared with respect to their description and classification and were
undervalued. It has also come to light that the Petitioner attempted to import
Prohibited Goods under the guise of declared goods in order to circumvent the
stipulated guidelines for the goods covered under CTH 27, which requires
mandatory First Check Examination Order as well as drawing of samples for
testing purpose before releasing the goods.
14. The Respondents further submitted that the said investigation
culminated in the issuance of show cause notice dated 19 th December 2023
which was subsequently adjudicated by Respondent No.3 by an Order in
Original dated 5th January 2024, whereby re-classification of goods under
CTH 2710 1990, under the head 'Others' was ordered. The said Order also
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WP 16179-23.DOC
directed re-determining the value of the goods under CVR, 2007, confiscation
of the goods u/s.111 (d) of the Customs Act, 1962 and allowed for redemption
only for re-export purpose on payment of RF. Penalty was also imposed on
both the Importing Firm and its Proprietor.
15. On the same being pointed out, the Petitioner submitted that, in respect
of the goods which are subject matter of Bill of Entry No.8560406 dated 31 st
October 2023, the Petitioner is willing to waive the show cause notice and is
agreeable that an order similar to the Order dated 5 th January 2024 be passed
without prejudice to the Petitioner's right to challenge the said order by filing
an Appeal, on all contentions. The Respondents would not have an objection
if such request of the Petitioner is accepted.
16. We accept such request as made by the Petitioner. Accordingly, the
following Orders are passed:
a. The Petitioner waives issuance of a show cause notice in respect of
the goods which are the subject matter of Bill of Entry No.8560406
dated 31st October 2023.
b. An order similar to the Order dated 5th January 2024 be passed in
respect of the goods which are the subject matter of Bill of Entry
No.8560406 within a period of two weeks from the date of intimation of
this Order. This shall be without prejudice to the right of the Petitioner to
challenge the said order being so passed by filing an Appeal and to raise
all contentions in the Appeal as may be permitted in law.
c. Petition is disposed of in the aforesaid terms
d. No order as to costs.
(FIRDOSH P. POONIWALLA, J.) (G. S. KULKARNI , J.)
30 January, 2024
