The Commissioner Of Customs vs Global Industries
2021 Latest Caselaw 14256 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                THE HONOURABLE MR.JUSTICE S.V.BHATTI
                                    &
          THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
        THURSDAY, THE 8TH DAY OF JULY 2021 / 17TH ASHADHA, 1943
                           WA NO. 1876 OF 2012
 AGAINST THE JUDGMENT IN WPC 10141/2011 OF HIGH COURT OF KERALA,
                               ERNAKULAM
APPELLANT/S:

    1       THE COMMISSIONER OF CUSTOMS
            CUSTOM HOUSE, WELLINGTON ISLAND, COCHIN-682 009.

    2       THE ASSISTANT COMMISSIONER OF CUSTOMS IMPORTS
            CUSTOM HOUSE, WELLINGTON ISLAND COCHIN-682 009.

            BY ADV SREELAL N. WARRIER, SC, CENTRAL BOARD OF EXCISE &
            CUSTOMS



RESPONDENT/S:

            GLOBAL INDUSTRIES
            B-3/20, 3-3, SECTION 15, VASHI, MUMBAI-400 703, REPRESENTED BY
            ITS PROPRIETOR IQBAL AZIZ VANJARA.


OTHER PRESENT:

            ADV. MADHU RADHAKRISHNAN FOR RESPONDENTS.




        THIS WRIT APPEAL HAVING COME UP FOR HEARING ON 08.07.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A. No. 1876/2012                  -2-




                              JUDGMENT

S.V. Bhatti, J.

Respondents in W.P.(C) No.10141/2011 are the appellants.

The learned Single Judge, through the judgment impugned in

Writ Appeal, directed the appellants as follows:

"4. Having heard both the sides, this Court finds that the proceedings have to be taken to logical conclusion. Accordingly, the respondents are directed to finalize Exts.P10 and P12 in the light of the relevant provisions of law and on the basis of the relevant materials. Petitioner is at liberty to rely on Ext.P9 before the respondents and it is for the respondents to consider the applicability of the same to the given set of facts and circumstances. Final assessment order as above shall be passed as expeditiously as possible, at any rate, within 'three months' from the date of receipt of a copy of this judgment."

2. The appellants filed review petition in WP(C)

No.10141/2011 and the review petition was dismissed. The

circumstances leading to the filing of W.P.(C) No.10141/2011 are

that the Customs, Excise & Service Tax Appellate Tribunal

(CESTAT) in Appeal Nos.C/47/2011 & C/CO/1/2011 in

C/47/2011, order dated 01.02.2011, directed the appellants as

follows:

"27. Having regard to the aforesaid facts and once we have held that the Customs authorities are bound to accept the transaction value, we direct them to allow clearance within 3 days as held by the Tribunal in the case of Rational Art & Press Limited - 2007 (215) ELT 522. It was informed that the appeal against this decision of the Tribunal was dismissed by the Hon'ble Bombay High Court.

28. The appellants rely on Regulation 6(1)(1) of Handling of Cargo in the Customs Areas Regulation, 2009, according to which a Customs Cargo Service Provider shall not charge any rent, demurrage on goods detained by proper officer of Customs, for seeking direction to customs authorities to issue detention certificate to the appellants to enable them claim waiver of demurrage and detention charges for the period commencing after three days from the date of filing of Bills of Entry. There is no dispute on the fact that due to valuation dispute, the cargo remained detained and the appellants could not take delivery of the same. Therefore, we see no prejudice to the Customs Authorities in issuing such detention certificate certifying the period for which the goods remained detained.

29. It was submitted by revenue that they have filed cross objections. On perusal of the same, we find that the points are in support of the impugned order. Further, we find that the impugned

order has no findings, by which revenue could have been aggrieved and hence, there cannot be any cross objections. The said cross objections filed are disposed of."

3. The grievance of respondent/writ petitioner has

been that the appellants are not giving effect to the decision of

the Appellate Tribunal in Appeal Nos.C/47/2011 & C/CO/1/2011

in C/47/2011. Hence, the writ petition for a mandamus to

implement the final order in Ext.P10 i.e., on item nos.1 to 6 in

Ext.P2 within 15 days following the Ext.P9 order.

4. The appellants inform this Court that the appeal filed

against Ext.P9 order is pending before the Supreme Court. It is

not in dispute that the appeal is pending and the appellants do

not have an order of stay in their favour against the

implementation of the decision of the CESTAT.

5. Our attention has been drawn to Section 130 of the

Customs Act read with Order XLV Rule 13 of the Civil Procedure

Code. The undisputed fact situation is that the Supreme Court

has not stayed the operation or implementation of decision of

the CESTAT. The appellant is under obligation to implement

the order of the CESTAT and ought to have complied with the

writ of mandamus issued by this Court in W.P.(C)

No.10141/2011. We find no reason to admit the appeal.

Writ appeal is dismissed accordingly. It is made clear that

the steps taken pursuant to the directions issued in W.P.(C)

No.10141/2011 and/or implementation of such an order is

subject to further orders of the Supreme Court in pending Civil

Appeal.

Sd/-

S.V.BHATTI JUDGE

Sd/-

BECHU KURIAN THOMAS JUDGE jjj