Delhi High Court
Rocktek Infra Services Pvt. Ltd. vs Principal Commissioner Of Customs ... on 6 February, 2025
Bench: Prathiba M. Singh, Dharmesh Sharma
$~22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 6th February, 2025
+ W.P.(C) 12489/2024
ROCKTEK INFRA SERVICES PVT. LTD. .....Petitioner
Through: Mr. Prabhat Kumar and Mr. Karan
Kanwal, Advs.
versus
PRINCIPAL COMMISSIONER OF CUSTOMS
(IMPORT) .....Respondent
Through: Mr. Harpreet Singh, Sr. SC with Ms.
Suhani Mathur and Mr. Jay Ahuja,
Advs. (M: 8383820042)
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE DHARMESH SHARMA
Prathiba M. Singh, J. (Oral)
1. This hearing has been done through hybrid mode.
2. This is a petition filed under Articles 226 and 227 of the Constitution
of India seeking issuance of an appropriate writ, inter alia, directing the
Respondents to permit provisional release of seized goods of the Petitioner
under Bond with security amount, however, without any Bank Guarantee.
3. The brief background is that the Petitioner imported self-drilling bars
against four bills of Entry bearing Nos. 3339702, 3339581, 3339436 and
3339114. The said goods were seized by the Customs Department on the
ground that they were wrongly classified by the Petitioner under Entry No.
82.07 instead of 73.04 of the Harmonized Commodity Description and
Coding System (hereinafter "HSN") classification.
4. The Petitioner made repeated representations to the Customs
Department for release of the seized goods. Finally, however, vide order dated
29th August, 2024, the Principal Commissioner of Customs (Import), ICD,
Tughlakabad, New Delhi provisional release of seized goods subject to
furnishing of UT Bond equal to assessable value and Bank Guarantee of 130%
of the deferential duty. The relevant portion of the said provisional release
order reads as under:-
2. In this regard it is informed that the competent authority
has approved provisional release of the seized goods
imported vide Bills of Entry No. 3339114 dated 04.05.2024,
3339436 dated 04.05.2024, 3339581 dated 04.05.2024 &
3339702 dated 04.05.2024 subject to furnishing of UT Bond
equal to assessable value and Bank Guarantee of 130% of
differential duty. The Bill of Entry wise amount of UT Bond
and BG is given below:-
Sr. Bill of UT Bond BG amount
No Entry amount (Rs.) (Rs.)
. No. &
date
1 3339114 dated 2045944 2033422.3
04.05.2024
2 3339436 dated 2005866 2065830
04.05.2024
3 3339581 dated 2058601 1864096
04.05.2024
4 3339702 dated 1988996 2009889.71
04.05.2024
5. As per the above order, the provisional release has been permitted
subject to two conditions -
• Furnishing of UT Bond for the entire assessable value and
• Furnishing of a Bank Guarantee for 130% of the Differential duty.
6. The Petitioner is seeking to challenge these onerous conditions of
provisional release imposed by the Customs Department. Hence, the present
petition.
7. Notice was issued in this petition on 6th September, 2024, and the
matter has thereafter been listed on seven occasions before the Court. The
counter affidavit and rejoinder have also been filed.
8. The short point being urged by the Petitioner is that the Petitioner is a
regular importer of seized goods and the ld. Counsel for the Petitioner has
taken the Court through the HSN classification. It is submitted by ld. Counsel
that the conditions imposed for provisional release are extremely onerous and
considering the value of goods, the said conditions are making it difficult to
get the goods released.
9. It is the submission on behalf of the Petitioner that the issue of
classification has to be finally decided by the Customs Department, however,
for the last nine months, the goods are lying with the Customs Department
resulting in financial losses to the Petitioner.
10. On the other hand, Mr. Harpreet Singh, ld. SCC for the Customs
Department submits that the seized goods are being misclassified only to
avoid anti-dumping duty as the goods are being imported from China. He also
places reliance on the decision of this Court in Hind Global Enterprises vs.
The Commissioner of Customs & Anr. [W.P.(C) 10015/2017], wherein the
Court has held that mere onerous conditions would not permit the Petitioners
to bypass the appellate remedy available under the Customs Act, 1962 and
approach this Court by way of a writ jurisdiction.
11. The Court has perused the HSN classification entries as also the
respective bills of entry and the description therein. The Court has also
perused the judgment in Hind Global Enterprises (supra). In the said matter,
the Coordinate Bench of this Court had observed that in cases of this nature,
the Petitioner ought to invoke the appellate statutory remedy. Further, in the
said matter, the writ petition was dismissed on the first day itself as is noted
in Paragraphs 9 and 10 of the said order, which is set out below:
"9. If the present writ petition is entertained, we would
necessarily have to issue notice and await the counter
affidavit which would take time. In fact it would delay the
matter. Moreover questions would also arise with regard
to facts relating to the imported goods etc.
10. Keeping in view the aforesaid position, we would
observe that the petitioner should invoke the appellate
statutory remedy by way of appeal under Section 128 of
the Act. The same would be efficacious and proper forum
for redressal of the grievance. If any such an appeal is filed
within a period of two weeks from today, the same would
not be dismissed on the ground of limitation. We would
also observe that if an appeal is filed, it would be disposed
of expeditiously and preferably within a period of five
weeks from the filing of the same."
12. Usually, in such cases, parties ought to avail of the appellate remedy
and not rush to the Court that too invoking the extraordinary writ jurisdiction.
However, in this case, the Petitioner claims to be a regular importer of the
seized goods. The seized goods have been lying with the Customs Department
since May 2024. The present petition is also pending for the last six months.
Relegating the Petitioner to the appellate remedy at this stage would cause
further delays in the release of the seized goods itself. Ultimately the
classification has to be decided by the Department.
13. The Customs Department has already accepted the prayer for
provisional release. The issue is only in respect of the conditions that are to
be imposed. The Court has considered the total value of the goods and the
amount of the Bank Guarantee. The calculated amount for the bank guarantee
would be substantial and may almost constitute 70-80% of the value of the
goods itself. The imposition of conditions being a discretionary matter, in the
facts of this case, this Court is of the opinion that it would be just and fair that
apart from the Bond which has been directed, the Bank Guarantee to the tune
of 30% of the differential duty be furnished by the Petitioner. Ordered
accordingly.
14. Upon the same being furnished by the Petitioner, the seized goods shall
be released within ten days.
15. The writ petition is disposed of in these terms. The present order has
been passed in the facts of this case.
16. Pending applications, if any, are also disposed of.
PRATHIBA M. SINGH
JUDGE
DHARMESH SHARMA
JUDGE
JANUARY 7, 2025/gunn/ms
