Abdul Rahiman Bappaithotty ... vs Commissioner Of Customs
2022 Latest Caselaw 11441 Ker

                     IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                      PRESENT
                     THE HONOURABLE MR. JUSTICE GOPINATH P.
     WEDNESDAY, THE 7TH DAY OF DECEMBER 2022 / 16TH AGRAHAYANA, 1944
                               WP(C) NO. 28305 OF 2021
PETITIONER:

     1        DUVVALA BHASKAR
              AGED 35 YEARS
              S/O. PEDDA GANGARAM DUVVALA, R/O. 3-19, MUCHKOOR, BHEEMGAL,
              NIZAMABAD, TELUNGANA, INDIA-503307, REPRESENTED BY POWER OF
              ATTORNEY HOLDER, M.G.THOMAS PIOUS, AGED 50 YEARS, S/O.
              M.J.GEORGE, R/O. BISHOP GARDEN, PATTALAM, COCHIN-682001.
              BY ADVS.
              P.A.AUGUSTIAN
              JOVIT LOBO
              M.A.BABY

RESPONDENTS:

1 COMMISSIONER OF CUSTOMS CUSTOMS HOUSE, WILLINGTON ISLAND, COCHIN-682009. 2 DEPUTY COMMISSIONER OF CUSTOMS (IMPORT), CUSTOMS HOUSE, WILLINGTON ISLAND, COCHIN-682009. 3 COMMISSIONER OF CUSTOMS (APPEALS), CUSTOMS HOUSE, WILLINGTON ISLAND, COCHIN-682009. BY ADV RAJESH. K.RAJU

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.12.2022, ALONG WITH WP(C).28297/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WPC Nos.28305 of 2021 & 28297 of 2021

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. WEDNESDAY, THE 7TH DAY OF DECEMBER 2022 / 16TH AGRAHAYANA, 1944 WP(C) NO. 28297 OF 2021 PETITIONER:

1 ABDUL RAHIMAN BAPPAITHOTTY ANWARSADIQ AGED 38 YEARS S/O.ABDUL RAHIMAN, R/O ASLAM MANZIL, BAPPAITHOTTY P.O., UPPALA, KASARGOD, KERALA - 671 322. BY ADVS.

P.A.AUGUSTIAN JOVIT LOBO

RESPONDENTS:

1 COMMISSIONER OF CUSTOMS CUSTOMS HOUSE, WILLINGTON ISLAND, COCHIN - 682 009. 2 DEPUTY COMMISSIONER OF CUSTOMS (IMPORT) CUSTOMS HOUSE, WILLINGTON ISLAND, COCHIN - 682 009. 3 COMMISSIONER OF CUSTOMS (APPEALS) CUSTOMS HOUSE, WILLINGTON ISLAND, COCHIN - 682 009. BY ADV RAJESH. K.RAJU

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.12.2022, ALONG WITH WP(C).28305/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WPC Nos.28305 of 2021 & 28297 of 2021

COMMON JUDGMENT Dated this the 07th day of December, 2022

[WP(C) Nos.28305/2021, 28297/2021]

The petitioners have approached this Court being

aggrieved by the fact that their request for provisional

release of vehicles imported by them has been

rejected by the competent authority.

2. When these matters are taken up for

consideration today, it is submitted by the learned

counsel for the respondent Department that

adjudication has been completed and Orders-in-

Original have been issued in respect of petitioners in

both these cases. It is submitted that these Orders-

in-Original are not under challenge in this writ

petitions.

3. The learned counsel appearing for the

petitioners in these cases would submit that the

Orders-in-Original are illegal and cannot be sustained WPC Nos.28305 of 2021 & 28297 of 2021

in law. He states that the demand for compensation

cess which is raised in both the Orders-in-Original

cannot be sustained in the facts and circumstances of

these cases. He states that since Orders-in-Original

have been issued, the petitioners may be permitted to

approach the First Appellate Authority by filing a

statutory appeal and the respondents may be directed

to release the vehicles, on the petitioners meeting the

demand raised against them vide the Orders-in-

Original .

4. Heard the learned Standing Counsel for the

respondent Department also.

Having regard to the facts and circumstances of

these cases and considering the submissions of both

sides, these writ petitions will stand disposed of

directing that on the petitioners meeting the demands

raised against them in the Orders-in-Original issued

separately against them, the vehicles which are

subject matters of the proceedings shall be released WPC Nos.28305 of 2021 & 28297 of 2021

to them. Any payment made by the petitioners will

be provisional and subject to the orders to be passed

in appeal or other proceedings to be initiated by the

petitioners. The period during which these writ

petitions were pending in this Court namely, from

08.12.2021 till today shall be excluded for the

purposes of computing any period of limitation within

which the appeals had to be filed against the Orders-

in-Original issued against the petitioners.

Sd/-

GOPINATH P.

JUDGE SKP/07-12 WPC Nos.28305 of 2021 & 28297 of 2021

APPENDIX OF WP(C) 28305/2021

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE INVOICE NO.DAE/EXP/690 DATED 15.5.2021 ISSUED BY CAR DEALER M/S. AL MADANI USED CARS & SPARE PARTS T.LLC, UAE. EXHIBIT P2 TRUE COPY OF THE ASSESSED B/E NO.5427601 DATED 13.9.2021.

EXHIBIT P3 TRUE COPY OF THE CHALLAN DATED 13.9.2021 EVIDENCING PAYMENT OF CUSTOMS DUTY AND FINE FOR DELAY IN FILING THE B/E.

EXHIBIT P4 TRUE COPY OF THE LETTER DATED 16.9.2021. EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 30.9.2021 IN WP(C) NO.20244/2021.

EXHIBIT P6 TRUE COPY OF THE RETRACTED STATEMENT DATED 6.10.2021.

EXHIBIT P7 TRUE COPY OF THE ORDER -IN-ORIGINAL NO.COC-

CUSTOMS-000-COM-35/19-20 DATED 7.11.2019. EXHIBIT P8 TRUE COPY OF THE ARGUMENT NOTE DATED 12.10.2021.

EXHIBIT P9 TRUE COPY OF THE ORDER NO.COC-CUS-COCHIN DATED 13.10.2021.

EXHIBIT P10 TRUE COPY OF THE NOTIFICATION NO.2/2015-2020 DATED 26.4.2021.

EXHIBIT P11 TRUE COPY OF THE CIRCULAR F NO.715/7/2005-CUS (AS) DATED 2.9.2005.

EXHIBIT P-13 TRUE COPY OF NOTIFICATION NO.01/2017 DATED 28.06.2017 EXHIBIT P-14 TRUE COPY OF THE NOTIFICATION NO. 5/2017 DATED 11.09.2017 EXHIBIT P-15 TRUE COPY OF THE NOTIFICATION NO. 01/2018 DATED 25.01.2018 EXHIBIT P-16 TRUE COPY OF THE LETTER DATED 14.10.2022 SUBMITTED BY THE COUNSEL FOR THE PETITIONER WPC Nos.28305 of 2021 & 28297 of 2021

APPENDIX OF WP(C) 28297/2021 PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE INVOICE NO.3677 DATED 03/03/2021 ISSUED BY CAR DEALER M/S.UNIQUE MOTORS, UAE.

EXHIBIT P2 TRUE COPY OF THE ASSESSED B/E NO.5384472 DATED 09/09/2021.

EXHIBIT P3 TRUE COPY OF THE CHALLAN DATED 15/09/2021 EVIDENCING PAYMENT OF CUSTOMS DUTY AND FINE FOR DELAY IN FILING THE B/E.

EXHIBIT P4 TRUE COPY OF THE LETTER DATED 17/09/2021. EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 30/09/2021 IN WP(C) NO.20245/2021.

EXHIBIT P6 TRUE COPY OF THE RETRACTED STATEMENT DATED 05/10/2021.

EXHIBIT P7 TRUE COPY OF THE ORDER-IN-ORIGINAL NO.COC-

CUSTOMS-000-COM-35/19-20 DATED 07/11/2019. EXHIBIT P8 TRUE COPY OF THE ARGUMENT NOTE DATED 12/10/2021.

EXHIBIT P9 TRUE COPY OF THE ORDER NO.COC-CUS-COCHIN DATED 13/10/2021.

EXHIBIT P10 TRUE COPY OF THE NOTIFICATION NO.2/2015-2020 DATED 26/04/2021.

EXHIBIT P11 TRUE COPY OF THE CIRCULAR F.NO.715/7/2005-CUS (AS) DATED 02/09/2005.

RESPONDENTS' EXHIBITS:NIL TRUE COPY

P.A.TO JUDGE