Bombay High Court
Swastik Synergy Engineering Pvt Ltd vs Union Of India on 25 October, 2024
Author: M.S. Sonak
Bench: M.S. Sonak
904-WP(L)25868-2024 (F).DOCX
2024:BHC-OS:18041-DB
Harish
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 25868 OF 2024
Swastik Synergy Engineering Pvt. Ltd., ...Petitioner
Versus
Union of India, Thr. The Chief Secretary
Ministry of Commere and Industry & Ors. ...Respondents
______________________________________________________
Mr Vivek Kantawala a/w Henna P. Shah and Ms. Palak Ranka,
for the Petitioner.
Mr. J. b. Mishra, a/w Ashutosh Mishra, for Respondent Nos. 1
to 4 & 6
Mr. Siddharth Chandrashekhar & Abhishek R. Minsra for
Respondent Nos. 5,7 & 8.
Mr. Mataprasad B Sharma a/w Harshad v. Shingnapurkar for
Respondent No. 8.
______________________________________________________
CORAM M.S. Sonak &
Ashwin D. Bhobe, JJ.
DATED: 25 October 2024
ORAL JUDGMENT :-
1. Rule.
2. The rule is made returnable immediately at the request
of and with the consent of the learned counsel for the parties.
3. The Petitioner challenges a notice dated 28 May 2024
alleging that the Petitioner tried to import cylinders on 16
April 2024 without a PESO certificate, obtained only on 10
May 2024. The notice requires the petitioner to show cause
why the goods under the bill of entry No. 3009262 should not
904-WP(L)25868-2024 (F).DOCX
be confiscated under Section 111(d) of the Customs Act, 1962
for noncompliance with Rules 31 and 32 of the Gas Cylinder
Rules, 2016. After the institution of this Petition, the 8 th
Respondent issued a Show Cause Notice dated 1 October
2024, to the same effect as the impugned notice dated 28 May
2024.
4. Mr. Kantawala submitted that the Application for a
PESO Certificate was made on 9 April 2024. Based on this, a
PESO Certificate was issued on 25 April 2024. However,
particulars in this certificate were incorrectly stated, thereby
forcing the Petitioner to once again apply for a fresh
certificate/correction.
5. A fresh certificate was issued on 10 May 2024 after the
correct particulars were included. Mr. Kantawala submitted
that in these circumstances, for no fault on the part of the
Petitioner and for reasons entirely attributable to the PESO
Authorities, the Petitioner cannot be made to suffer either
confiscation or Penalty.
6. Mr. Mishra and Mr. Chandrashekhar learned counsel for
Respondents, pointed out that even if the incorrect PESO
Certificate dated 25th April 2024 were to be regarded as valid,
still, the goods, in this case, arrived on 16 th April 2024 i.e.
before the date of such certificate. Accordingly, they submitted
that there was a prima facie breach of Rules 31 and 32 of the
Gas Cylinder Rules, 2016, and that there was nothing wrong
with the issuance of the Show Cause Notices.
7. According to us, both parties raise arguable issues, and
in these circumstances, it would not be appropriate to quash
904-WP(L)25868-2024 (F).DOCX
the impugned communication dated 28 May 2024 or the Show
Cause Notice dated 1 October 2024. The Respondents have also
offered to adjudicate the Show Cause Notice within two
weeks from today.
8. However, Mr. Kantawala is right in submitting that, in
the meantime, there is no justification for not releasing the
Cylinders from the warehouse, subject to certain reasonable
conditions. He pointed out that even in the order dated 9
November 2022, issued by the Commissioner of Customs
relating to an earlier transaction involving Cylinders valued at
approximately Rs. 36 lakhs, the redemption fine was Rs.
50,000/--, and the penalty was Rs. 25,000/--only.
9. Considering that in the present case, the value of the
Cylinders is around Rs. 31 lakhs, we direct that the Cylinders
be provisionally released subject to the Petitioner furnishing
the usual bonds and paying the concerned Respondents an
amount of Rs. 2,00,000/- without prejudice to the Petitioners
rights and contentions that in the present case, no penalty or
redemption fine is payable. All parties' contentions in the
context of the Show Cause Notice issued are left open.
10. Mr. Kantawala states that the payment and other
formalities will be completed by 30 October 2024. When this
is done, the cylinders must be released immediately.
11. We clarify that the payment of Rs. 2,00,000/- will abide
by the conclusion in the adjudication of proceedings pursuant
to the Show Cause Notice already issued.
904-WP(L)25868-2024 (F).DOCX
12. This Petition is disposed of by making the following
order:
(A) The Seventh and Eighth Respondents are directed to
provisionally release the Cylinders upon the
Petitioner furnishing the usual bonds for paying an
amount of Rs. 2,00,000/- without prejudice.
(B) The Petitioner is granted the liberty to file reply to
Show Cause notice by 30 October, 2024. The
Respondent Nos. 7 and 8 must dispose of the Show
Cause Notice within a period of two weeks of the
receipt of such reply after giving the Petitioner an
opportunity of hearing.
13. Writ Petition is disposed of in the above terms with no
cost order.
14. All concerned must act on an authenticated copy of this
order.
(Ashwin D. Bhobe, J) (M.S. Sonak, J)
Signed by: Harish V. Chaudhari
Date: 25/10/2024 22:20:49
