Madras High Court
M/S.Al Qahir International vs The Tuticorin Customs House on 22 June, 2021
W.A.(MD)No.1156 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 22.06.2021
CORAM
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
AND
THE HONOURABLE MRS.JUSTICE S.ANANTHI
W.A.(MD)No.1156 of 2021
and
W.P(MD).No.9516 of 2021
and
W.M.P(MD).No.7249 of 2021
W.A.(MD)No.1156 of 2021
M/s.Al Qahir International,
Rep. by its Managing Partner,
Shri Shihad
13/489, A, Kumara Nellur,
Thrissur District, Kerala. ... Appellant/Petitioner/Petitioner
Vs.
1. The Tuticorin Customs House,
Rep. by its Superintendent,
Tuticorin Port.
2. The Deputy Director,
Directorate of Revenue Intelligence,
Tuticorin - 628 001. ... Respondents/Respondents/Respondents
Prayer: Writ Appeal filed under Clause 15 of Letters Patent, against the order of
this Court made in W.M.P(MD).No.7249 of 2021 in W.P.(MD) No.9516 of
https://www.mhc.tn.gov.in/judis/
W.A.(MD)No.1156 of 2021
2021, dated 27.05.2021.
W.P(MD).No.9516 of 2021
M/s.Al Qahir International,
Rep. by its Managing Partner,
Shri Shihad
13/489, A, Kumara Nellur,
Thrissur District, Kerala. ... Petitioner
Vs.
1. The Tuticorin Customs House,
Rep. by its Superintendent,
Tuticorin Port.
2. The Deputy Director,
Directorate of Revenue Intelligence,
Tuticorin - 628 001. ... Respondents
Prayer: Petition under Article 226 of the Constitution of India seeking issuance
of a writ of Mandamus directing the respondents to relese the petitioner's
consignment/goods imported vide Bill of Entry Nos.3655257 dated 21.04.2021,
3649935 dated 21.04.2021, 3649146 dated 21.04.2021, 3718109 dated
26.04.2021, 3746469 dated 28.04.2021, 3656537 dated 21.04.2021, 3655260
dated 21.04.2021 and 3655555 dated 21.04.2021 with the time that may be
stipulated by this Court.
For Appellant : Mr.Vijay Narayan
and Writ Petitioner Senior Counsel
for Dr.S.Krishnanandh
For Respondents : Mr.B.Vijay Karthikeyan
in W.A and W.P
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W.A.(MD)No.1156 of 2021
COMMON JUDGMENT
[Judgment of the Court was delivered by T.S.SIVAGNANAM,J.]
This appeal filed by the writ petitioner is directed against the order
dated 27.05.2021 in W.M.P(MD).No.7249 of 2021 in W.P.(MD) No.9516 of
2021. It is an interim direction passed in the writ petition. The appellant being
aggrieved by the conditions imposed by the learned Single Bench is before us
by way of this Writ Appeal.
2. We have elaborately heard Mr.Vijay Narayan, learned Senior
Counsel, assisted by Dr.S.Krishnanandh, learned counsel appearing for the
appellant and Mr.B.Vijay Karthikeyan, learned Standing Counsel appearing for
the respondents. With consent on either side, we dispose of this Writ Appeal as
well as the Writ Petition by this Common judgment and order.
3. The facts of the case, which are necessary for the disposal of this
appeal, are noted as follows:
(i) The appellant has imported eight consignments of black pepper
from Srilanka. The value declared is more than Rs.500/- (Rupees Five Hundred
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W.A.(MD)No.1156 of 2021
Only) per kilogram. As per the notification issued, black pepper, if the import
price of which is more than Rs.500/ per kilogram, is freely importable.
(ii) The appellant has paid the customs duty computed at the rate of
Rs.500/- per kilogram. The Directorate of Revenue Intelligence (in short
"DRI"), Tuticorin has seized the goods under mahazar dated 19.05.2021, on the
alleged ground that the purchase price of black pepper in Srilanka is far lesser
than Rs.500/-. The invoices were inflated by the appellant only for the purpose
of getting over the prohibition as per the amended DGFT notification No.
21/2015-2020, dated 25.07.2018. The goods are now lying in the Tuticorin Port.
(iii) The petitioner made a request to the DRI, Tuticorin, by
representation dated 13.05.2021, requesting for release of the goods. Within
three days thereafter, the writ petition was filed praying for issuance of a Writ of
Mandamus to release the goods. The learned Single Bench, while keeping the
writ petition pending, has issued certain directions.
4. The learned Senior Counsel appearing for the appellant submitted
that though a reading of the impugned order passed by the learned Single Bench
appears to give an impression that the appellant has domain over the goods, in
effect, the appellant has got no domain over the goods and the conditions
imposed are unworkable and he has not been permitted to clear the goods. Since
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W.A.(MD)No.1156 of 2021
the prayer sought for is for a blanket relief, the DRI has filed counter affidavit
in the writ petition, as to what is the material gathered during investigation up to
this stage and justified their seizure by mahazar dated 19.05.2021.
5. In our considered view, there is no necessity for this Court to go
into the aspect with regard to the investigation, which is being carried on by
DRI, Tuticorin, because the issue involved in the writ petition is whether the
goods imported by the appellant can be released by the Customs Authority,
either by way of a release in total or by way of a provisional release. Since the
DRI has taken up the matter for investigation, the appellant seeks for
provisional release of the cargo, which has been imported by them, seized by
the DRI and presently lying in the Tuticorin Port. If such is the prayer sought
for by the appellant, then reasonable time should be granted to the Competent
Authority to take a decision on such an application or representation being filed
for provisional release of the cargo.
6. We find that there is no formal request made to the Competent
Authority, who is stated to be the Commissioner of Customs, Tuticorin, praying
for provisional release of the cargo. Therefore, in our considered view, the
prayer as couched in the writ petition is premature and no Writ of Mandamus
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W.A.(MD)No.1156 of 2021
could have been issued at the present stage, more particularly, when the
Authority is yet to take a decision on the matter and more importantly, when
there is no specific request made by the appellant for grant of provisional
release before the Commissioner of Customs, Tuticorin.
7. The learned Senior Counsel appearing for the appellant and the
learned Standing Counsel appearing for the Revenue made elaborate
submissions.
8. On the side of the Revenue, reliance was made on the recent
decision of the Honourable Supreme Court in Union of India & Ors., vs.
M/s.Raj Grow Impex LLP & Ors., in Civil Appeal Nos.2217-2218 of 2021,
dated 17.06.2021.
9. The learned Senior Counsel appearing for the appellant would
submit that the said decision is distinguishable and it is based upon a conduct of
the importer, who knowingly misrepresented and obtained an interim order
from the High Court of Rajasthan and which was dealt with by the Honourable
Supreme Court in the case of Union of India & Ors., vs. Agricas LLP & Ors.,.
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W.A.(MD)No.1156 of 2021
10. In our considered view, it will be too early for us to examine the
aspects now placed before us by the appellant as well as the Department,
because, there is a clear dichotomy between the request made by the appellant
before us for provisional release and the investigation, which is now being
conducted by the DRI. The appellant cannot mix up both, as both are
independent to each other.
11. In any event, if a request is made by the appellant for provisional
release before the Competent Authority, the Competent Authority is required to
take a decision in the matter. As we pointed out earlier, there is no formal
request made by the appellant for provisional release of the cargo and the
representation dated 13.05.2021 given to the DRI is for release of the cargo and
cannot be construed as an application for provisional release.
12. Therefore, we are of the considered view that the prayer sought
for in the writ petition is not maintainable or rather has to be taken to be
premature, considering the facts of the case, since the Revenue states that the
import of black pepper into India, which is valued below Rs.500/- is prohibited
taking into consideration the welfare of the agriculturists and it is alleged by the
DRI that the imports had been effected by the appellant by inflating the invoice
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W.A.(MD)No.1156 of 2021
value. We do not propose to render any opinion on these issues as we are
convinced that the appellant should approach the Commissioner of Customs,
Tuticorin, with a proper request for provisional release, which the Competent
Authority will consider in accordance with law.
13. We make it clear that the direction which we propose to issue in
this writ appeal will in no manner have any impact on the investigation done by
the DRI.
14. The learned Counsel appearing for the appellant submitted that
identical import was effected through the Chennai Port, which was also
investigated by the DRI, Bengaluru, who have given No Objection Certificate
for clearance of the goods. If that is so, it will be well open to the appellant to
place copy of such an order for consideration of the Commissioner of Customs,
Tuticorin, while filing the application for provisional release.
15. For the above reasons, the Writ Appeal is allowed and the interim
direction issued in the writ petition is set aside. Consequently, the writ petition
stands disposed of by directing the appellant to file a proper application for
grant of provisional release of the cargo along with their submissions as well as
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W.A.(MD)No.1156 of 2021
the documents which they propose to rely upon and the Commissioner of
Customs, Tuticorin, shall fix the date for personal hearing, preferably, through
video conferencing, since the appellant is stated to be a permanent resident of
State of Kerala. After the conclusion of the personal hearing, the Commissioner
of Customs, Tuticorin, shall pass orders on the application of provisional release
within a period of ten days thereafter. No costs.
Index :Yes/No (T.S.S.,J.) (S.A.I.,J.)
Internet :Yes/No 22.06.2021
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Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the copy
of the order that is presented is the correct copy, shall
be the responsibility of the advocate/litigant concerned.
To:
1. The Superintendent,
Tuticorin Customs House,
Tuticorin Port.
2. The Deputy Director,
Directorate of Revenue Intelligence,
Tuticorin - 628 001.
https://www.mhc.tn.gov.in/judis/
W.A.(MD)No.1156 of 2021
T.S.SIVAGNANAM, J.
and
S.ANANTHI, J.
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W.A.(MD)No.1156 of 2021
22.06.2021
https://www.mhc.tn.gov.in/judis/
