Kerala High Court
Avt Natural Products Limited vs Union Of India on 12 November, 2024
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W.P.(C)No.34531 of 2024
2024:KER:84489
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
TUESDAY, THE 12TH DAY OF NOVEMBER 2024 / 21ST KARTHIKA, 1946
WP(C) NO. 34531 OF 2024
PETITIONER:
AVT NATURAL PRODUCTS LIMITED
PLOT NO. 225/1, A 5-7 KAPOORIKKARA, VARHAKULAM,
MARAMPILLY P.O, ALUVA, ERNAKULAM, REPRESENTED BY
ITS SENIOR VICE PRESIDENT & CHIEF FINANCIAL
OFFICER - MR. A. RAMADAS, PIN - 683105
BY ADVS.
KURYAN THOMAS
M.GOPIKRISHNAN NAMBIAR
K.JOHN MATHAI
JOSON MANAVALAN
PAULOSE C. ABRAHAM
RAJA KANNAN
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY ITS REVENUE SECRETARY,
MINISTRY OF FINANCE, NEW DELHI, PIN - 110004
2 ASSISTANT COMMISSIONER OF CUSTOMS
APPRAISING IMPORTS, CUSTOMS HOUSE,
WILLINGDON ISLAND, COCHIN, PIN - 682009
BY ADV.
SRI.R.HARISHANKAR - SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 12.11.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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W.P.(C)No.34531 of 2024
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HARISANKAR V. MENON, J.
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W.P.(C) No.34531 of 2024
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Dated this the 12th day of November, 2024
JUDGMENT
The petitioner, a 100% Export-Oriented Unit (EOU), had
exported decaffeinated tea during July, 2023 to the United
Kingdom. Unfortunately, the foreign buyer appears to have
rejected the item exported by the petitioner on account of some
reasons pointed out by them. Therefore, the goods exported by
the petitioner were sent back by the foreign buyer, and upon the
afore goods reaching the Cochin customs, the petitioner has
presented a bill of entry, availing the benefits pursuant to
Ext.R2(b) notification.
2. The petitioner, it is true, had also submitted a
communication at Ext.P7 dated 21.05.2024, with reference to the
relevant facts and figures as highlighted by them, in tune with the
bill of entry. In the last but one paragraph, the petitioner had
pointed out that "no show cause notice needed to be issued and
the petitioner would be satisfied by an opportunity of personal
hearing being granted" to it.
3. Acting on Ext.P7, the 2nd respondent offered a personal
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hearing to the petitioner on 01.07.2024, as seen from Ext.R2(a).
A reference to the said record of personal hearing would also show
that what was the subject matter of personal hearing was
essentially the contents of Ext.P7 communication.
4. The 2nd respondent thereafter issued Ext.P8 order
dated 24.07.2024, refusing to extend the benefits claimed by the
petitioner pursuant to R2(b). The reason for denying the said
benefits, as seen from Ext.P8, is as under;
"I find that on detailed examination conducted by the officers
at CFS, KSIE certain discrepancies came up which prevented
them from establishing the identity of the 're-imported'
goods. As per the examination report "identity could not be
established with export documents, as per the export invoice
manufacturing date is July 2023, while the label pasted on
the item shows the production date: January 2024". Based
on the examination report I find that the labels pasted on the
imported goods had the production date mentioned as
January 2024 whereas the importer had declared that the re-
imported goods were those which were exported vide S/B
No.2759302 dated 27.07.2023. Hence I find this matter
needs no further discussion as there is no denying the fact
that the goods with production date January 2024 could not
have been exported in July 2023."
It is assailing the findings in Ext.P8 that the captioned writ petition
is presented.
5. I have heard Sri.Kuryan Thomas, the learned counsel
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for the petitioner and Sri.R.Harishankar, the learned Standing
Counsel for the 2nd respondent.
6. The short issue arising for consideration in this writ
petition is as regards the sustainability or otherwise of Ext.P8.
7. The facts, to the extent admitted, would go to show
that the petitioner had filed the bill of entry with reference to the
goods sent back by the foreign buyer availing the benefits as
available under Ext.R2(b). The afore bill of entry was being
processed by the respondents. The petitioner had filed Ext.P7
essentially pointing out the nature and history of the export and
the re-import, which led to the filing of the bill of entry. It is only
in that context that the petitioner can be said to have waived the
issue of a show cause notice in the matter. However, a reading of
Ext.P8 would show that the 2nd respondent has taken a stand to
the effect that what was exported and what is now covered by the
bill of entry are not one and the same commodity. It is true that
the 2nd respondent has also referred to the label of the goods
covered by the bill of entry, which was of the month January, 2024
and therefore, the 2nd respondent cannot be found fault in
entertaining a doubt in the claim made by the petitioner. However,
a reading of the averments in the writ petition would show that
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the petitioner had explanations as regards the discrepancy noticed
by the 2nd respondent herein. But the afore doubt expressed by
the 2nd respondent in Ext.P8 is not seen put to the petitioner prior
to the issue of Ext.P8 proceedings. To the afore extent, in my
opinion, there is a violation of principles of natural justice. In such
circumstances, in my opinion, the matter requires to be
reconsidered.
8. In this connection, Sri.Harishankar, the learned
Standing Counsel for the 2nd respondent, vehemently points out
that, subsequent to the filing of the writ petition, the petitioner
has filed a statutory appeal against Ext.P8 and therefore, this
Court need not interfere. However, I notice that, even if such an
appeal is filed by the petitioner, the essential ground raised by the
petitioner in such an appeal is also with reference to the natural
justice as noticed above. The learned counsel for the petitioner,
Sri.Kuryan, would also show with reference to the appeal filed that
the filing of the appeal as above was without prejudice to the
pendency of the captioned writ petition. Apart from all that, it is
all the more better to have a quietus to the issue at the earliest.
In such circumstances, I am of the opinion that this writ
petition can be disposed of as under;
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i. Ext.P8 issued by the 2nd respondent would stand
set aside.
ii. The petitioner is permitted to consider the findings
in Ext.P8 as a show cause notice and to file an
objection / explanation in that regard, within a
period of three weeks from today.
iii. If such an objection / explanation is filed, the 2 nd
respondent to grant the petitioner an opportunity
of hearing and pass fresh orders within a period
of ten days thereafter.
iv. The appeal filed by the petitioner - Ext.P10 would
stand struck off from the files of the appellate
authority.
Sd/-
HARISANKAR V. MENON
JUDGE
anm
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APPENDIX OF WP(C) 34531/2024
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE EXPORT INVOICE
NO.92000368 DATED 27.07.2023 ISSUED BY
THE PETITIONER
Exhibit P2 A TRUE COPY OF THE SHIPPING BILL
NO.2759302 DATED 27.07.2023
Exhibit P3 A TRUE COPY OF THE INVOICE NO.DC3520A
DATED 11.03.2024 ISSUED BY AVT NATURAL
EUROPE LIMITED, UK TO THE PETITIONER
Exhibit P4 A TRUE COPY OF THE SEA WAYBILL NO.
HLCUHAM2402BGBH6 DATED 08.03.2024
Exhibit P5 A TRUE COPY OF THE BILL OF ENTRY
NO.3201972 DATED 25.04.2024
Exhibit P6 A TRUE COPY OF THE LETTER DATED
25.04.2024 FILED BY THE PETITIONER BEFORE
THE 2ND RESPONDENT
Exhibit P7 A TRUE COPY OF THE LETTER DATED
21.05.2024 FILED BY THE PETITIONER BEFORE
THE 2ND RESPONDENT
Exhibit P8 A TRUE COPY OF ORDER NO. 22/2024 DATED
24.07.2024 ISSUED TO THE PETITIONER BY
THE 2ND RESPONDENT
Exhibit P9 A TRUE COPY OF THE CIRCULAR NO. 55/2020-
CUS. DATED 17.12.2020 ISSUED BY THE
CENTRAL BOARD OF INDIRECT TAXES AND
CUSTOMS
Exhibit P10 A TRUE COPY OF THE APPEAL DATED
28.10.2024 (WITHOUT ANNEXURES) FILED
BEFORE THE APPELLATE COMMISSIONER
RESPONDENT EXHIBITS
Exhibit R2(a) TRUE COPY OF RECORD OF PERSONAL HEARING
DATED 01-07-2024
Exhibit R2(b) TRUE COPY OF NOTIFICATION NO: 52/2003 -
CUSTOMS DATED 31-03-2003
