Madras High Court
M/S.Empire Traders vs The Commissioner Of Customs on 1 February, 2022
W.P.(MD)No.9799 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.02.2022
CORAM:
THE HONOURABLE MR.JUSTICE M.SUNDAR
W.P.(MD)No.9799 of 2021
and
W.M.P(MD).No.7536 of 2021
M/s.Empire Traders,
Rep. by its Managing Partner Mr.Anzal,
17/1261, Konukunnel Building,
Kattappana, Idukki District,
Kerala – 685 508. : Petitioner
Vs.
1. The Commissioner of Customs,
Custom House, New Harbour Estate,
Tuticorin – 628 004.
2. The Assistant Commissioner of Customs (Imports),
Custom House, New Harbour Estate, Tuticorin – 628 004.
3. The Deputy Director,
Directorate of Revenue Intelligence,
22/14, Celin Garden, Roche Colony,
South Beach Road,
Tuticorin – 628 001. : Respondents
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1/31
W.P.(MD)No.9799 of 2021
PRAYER: Writ Petitions filed under Article 226 of the Constitution of
India for issuance of Writ of Mandamus directing the respondents to
release the goods viz.,. 500 Bags viz., 28000 Kgs., of Srilankan Black
Pepper – Matured Berries imported from Srilanka vide Bill of Entry No.
3732607 dated 27.04.2021, totally valued at USD 196000.00.
For Petitioner : Mr.A.K.Jayaraj
For Respondents : Mr.R.Aravindan,
Senior Standing Counsel for Customs
ORDER
********************
In the captioned matter, Mr.A.K.Jayaraj, learned counsel on record
for writ petitioner and Mr.R.Aravindan, learned Senior Standing Counsel
for Customs (Revenue counsel) on behalf of all the respondents are
before this virtual Court.
2. Learned counsel on both sides submit that the captioned matter
pertains to import of Black Pepper of Sri Lankan origin, seizure of the
same on alleged grounds of over valuation to circumvent a custom
notification and the captioned matter pertains to release of consignment
under Section 110A of 'the Customs Act, 1962 (Act No.52 of
1962)' (hereinafter 'said Act' for the sake of convenience and clarity).
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3. Learned counsel on both sides submit that a series of orders
have been made by different Hon'ble Single Judges as well as a Hon'ble
Division Bench in Al Qahir International case (M/s.Al Qahir
International v. The Commissioner of Customs) vide W.A(MD) No.
1782 of 2021 (order dated 22.12.2021) directing provisional release
under Section 110A of said Act on certain conditions.
4. The last of the order was made by this Court in M/s.Travancore
Solvents & Oils case (M/s.Travancore Solvents & Oils v. The
Commissioner of Customs, Custom House, Tuticorin) being order dated
12.01.2022 vide W.P(MD) No.22788 of 2021 and W.M.P(MD) No.19248
of 2021.
5. Learned counsel for writ petitioner and learned Revenue counsel
submit in one voice that the captioned matter is directly and squarely
cover by the aforementioned M/s.Travancore Solvents & Oils case
which reads as follows:
'The writ petitioner has imported '30120.00 kilograms
of Black Pepper Sri Lankan origin' (hereinafter 'said
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consignment' for the sake of convenience and clarity). A 'Bill
of Entry dated 13.07.2021 bearing reference No.
4656562' (hereinafter 'said Bill of Entry' for the sake of
convenience and clarity) for home consumption was filed.
Thereafter more than two and half months later, writ
petitioner was visited with a summons under Section 108 of
'the Customs Act, 1962 (Act No.52 of 1962)' (hereinafter 'said
Act' for the sake of convenience and clarity) calling upon the
writ petitioner to give annual statement, balance sheet,
remittance particulars etc., and the writ petitioner was called
upon to appear before the officer concerned on 12.10.2021.
This Court is informed that the writ petitioner appeared and
produced the documents sought for. Thereafter as the
consignment was not released, the writ petitioner sent two
representations one dated 08.10.2021 and another dated
21.10.2021. Immediately thereafter, a seizure memo was
issued on 26.10.2021 seizing the said consignment. Though
no reasons have been given in the seizure memo, as the said
consignment remains seized, writ petitioner has come before
this Court with the captioned writ petitioner seeking release
of said consignment vide said Bill of Entry. This Court issued
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notice on 23.12.2021 vide proceedings which reads as
follows:
'Mr.Isaac Mohanlal, learned Senior
Advocate instructed by the Counsel on record
for the writ petitioner is before me.
2.Learned Senior Counsel submits that
the captioned writ petition pertains to import of
Black Pepper from Sri Lanka, a similar issue
came up before this Court vide W.P.(MD)No.
21469 of 2021 and the same was disposed of by
this Court in and by order dated 03.12.2021.
3.Mr.R.Aravindan, learned Senior
Standing Counsel for Customs who accepts
notice on behalf of all the four respondents
submits that there may be certain factual
differences qua the aforementioned earlier
order cited by learned Senior Counsel and
learned Revenue Counsel requests for time to
get instructions and revert to this Court.
Request acceded to.
4.Registry to show the name of
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aforementioned learned Revenue Counsel from
the next listing.
5.List on 04.01.2022.'
Thereafter, there were four listings on 04.01.2022,
06.01.2022, 10.01.2022 and 11.01.2022 respectively and the
proceedings made on those listings are read as follows:
Proceedings dated 04.01.2022:
'Read this in conjunction with and in
continuation of earlier proceedings made in
previous listing on 23.12.2021. Today, this
Court is informed that there is a change in
learned Revenue counsel and in place of
Mr.R.Aravindan, learned Senior Standing
Counsel, Mr.B.Vijay Karthikeyan, learned
Senior Standing Counsel for Central Excise and
Customs would now be representing the
respondents. Registry to show the name of
Mr.B.Vijay Karthikeyan, learned Senior
Standing Counsel for Central Excise and
Customs from the next listing.
2. Learned Revenue counsel submits that
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W.P.(MD)No.9799 of 2021
a counter-affidavit has been email filed but the
same has not been placed before me. Let the
Registry do the needful before the next listing.
3. List on 06.01.2022.'
Proceedings dated 06.01.2022:
'At request of Revenue Counsel, list
under the Admission Board on Monday
(10.01.2022).'
Proceedings dated 10.01.2022:
'Read this in conjunction with and in
continuation of earlier proceedings made in
previous listing on 04.01.2022.
2. Today the counter-affidavit filed by
the respondents forming part of a typed set of
papers (referred to in 04.01.2022 proceedings)
has been placed before this Court.
3. List in the admission board tomorrow.
4. List on 11.01.2022.'
Proceedings dated 11.01.2022:
'When the matter was taken up, order
dated 22.12.2021 made in W.A(MD No.1782 of
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2021 by a Hon'ble Division Bench of this
Court in M/s.Al Qahir International case came
up for consideration.
2. Learned Revenue Counsel requested
for a short accommodation to get instructions
on implementation qua the aforementioned
order and revert to this Court. Request
acceded to. List tomorrow in the admission
boar i.e., motion list.
3. List on 01.02.2022.'
2. The aforementioned proceedings are telltale qua the
trajectory the matter has taken thus far.
3. Mr.Isaac Mohanlal, learned Senior Counsel
instructed by Mr.Ragatheesh Kumar of M/s.Isaac Chambers
(Law Firm) counsel on record for writ petitioner submits that
a perusal of the counter-affidavit of the Revenue shows that
the crux and gravamen of the issue is the allegation that the
invoices qua said consignment have been overvalued so as to
circumvent Minimum import price (MIP) of Rs.500/- per
kilogram as import of Black Pepper up to the value of Rs.
500/- per kilogram is prohibited vide notification No.
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21/2015-2020 dated 25.07.2018 issued by the Directorate
General of Foreign Trade (DGFT). Advancing further
arguments, learned Senior Counsel submitted that the issue
as to provisional release of such Black Pepper which are
under seizure i.e., said consignment on grounds of alleged
over valuation of invoices (allegedly to circumvent import
restrictions) is no longer res integra as provisional release of
similar consignments which were seized on same grounds
have been directed to by way of a series of judicial orders by
this Court, the said orders have been complied and
consignments have been released is learned Senior Counsel's
further say. It was submitted that these orders are pivoted on
Section 110A of said Act. The orders placed before me are,
order dated 14.07.2021 made in W.P.No.12454 of 2021, order
dated 23.08.2021 made in W.P(MD) No.13790 of 2021 and
order dated 03.12.2021 made in W.P(MD) No.21469 of 2021.
4. In response to the aforementioned arguments,
Mr.B.Vijay Karthikeyan, learned Senior Standing Counsel for
Customs (Revenue Counsel) drew the attention of this Court
to Board Circular No.1/2011 dated 04.01.2011 and Board
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Circular No.35/2017 dated 16.08.2017. To be noted, 'Board'
refers to 'Central Board to Excise & Customs, New Delhi' in
the case on hand. Former circular pertains to 'Export' and
the latter pertains to 'Import'. Learned Revenue counsel drew
the attention of this Court to paragraphs 2.1 and 2.2 of latter
circular and argued that there should be sufficient security.
Learned Revenue counsel also drew the attention of this
Court to two Division Bench orders one dated 07.09.2017
made in W.A.Nos.1019 & 1020 of 2017 (The Commissioner
of Customs (Exports) v. M/s.Sri G.P.R.Leathers) and
another dated 20.02.2019 made in W.A.Nos.236 of 2019 and
batch cases, (Unik Traders v. Directorate of Revenue
Intelligence, Chennai) reported in 2019 (367) E.L.T.353
(Mad.).
5. By way of reply, learned Senior Counsel pointed out
that in the aforementioned three orders, pressed into service
by him the facts are identical, the consignment is same i.e.,
Black Pepper and one of the three orders, namely, order
dated 23.08.2021 made in W.P(MD) No.13790 of 2021 has
been carried in appeal by way of W.A(MD) No.1782 of 2021
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which was disposed of by a Hon'ble Division Bench by order
dated 22.12.2021. There is no disputation or disagreement
before me that the consignment is the same and the facts are
identical. One of the these matters carried to a Hon'ble
Division Bench by way of an intra-court appeal is Al Qahir
International case (M/s.Al Qahir International v. The
Commissioner of Customs). In Al Qahir case, learned Single
Judge vide order dated 23.08.2021, inter alia directed release
of goods on execution of bank guarantee for interest, penalty
or charges that may be charged. This is vide paragraph 38 (i)
of the Single Judge's order. The importer carried the matter
in appeal by way of intra-court appeal and a Hon'ble
Division Bench vide its 22.12.2021 order modified the
conditions imposed by learned Single Judge with regard to
bank guarantee alone and said bond will suffice. This is vide
paragraph 12 of the order of Hon'ble Division Bench.
Paragraph 38 of order of Hon'ble Single Judge and
paragraphs 12 to 14 of the order of Hon'ble Division Bench
read as follows:
Paragraph 38 of Single Judge's order:
'38.In this context, the earlier order
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passed by the learned Judge referred to above
in similar circumstances in M/s.Global Metro
case, can very well be followed in the present
case also. Accordingly, I am of the view that
this writ petition can be disposed of with the
following order:
(i)that the impugned order is set aside
for the reasons discussed above and in view of
the same, the respondent is hereby directed to
pass orders for releasing the goods in question
by way of provisional release of course by
imposing the following conditions:
that the petitioner shall pay the entire
customs duty and also to execute a bank
guarantee for interest, penalty or charges that
may be charged and in this context, the
respondent before passing such order for
provisional release, shall quantify the amount,
which may be imposed by way of penalty and
charges etc., on the petitioner and equal to
that amount, the bank guarantee shall be
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obtained from the petitioner and after getting
the same, the goods in question shall be
released by way of provisional release.
(ii)Further, this Court wants the
respondent Customs Department to complete
the adjudication process at the earliest, for
which, the petitioner shall cooperate without
taking any unnecessary adjournments and
after completing the adjudication process at
the earliest, within a reasonable time,
ultimately if the Customs Department comes to
a conclusion that the goods in question are
prohibited goods, within the meaning of
notification dated 25.07.2018, the needful as
per law shall be undertaken by the Customs
Department. That apart, the Customs
Department shall also make a
recommendatory report to the DGFT to initiate
action against the petitioner within the
meaning of Section 8 of the Foreign Trade
(Development and Regulation) Act, 1992. The
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needful as indicated above to pass orders of
making provisional release of the goods
concerned shall be undertaken within a period
of one week from the date of receipt of a copy
of this order.
(iii) It is further made clear that, insofar
as the claim to be made with regard to the
waiver charges, it can be considered
separately in accordance with law.'
Paragraphs 12 to 14 of order of Division Bench:
'12. To make it clear, we modify the
condition imposed by the Writ Court to furnish
bank guarantee to furnish a bond to the same
value. So far as the adjudication is concerned,
the authorities are to proceed with the same
without being influenced by this order as this
order does not express any opinion in that
regard.
13. Excepting the above modification,
the order passed by the learned Single Judge in
all other aspects shall stand confirmed.
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14. The writ appeal is disposed of
accordingly. No Costs.'
6. As regards the G.P.R.Leathers case i.e., order dated
07.09.2017 placed before me by learned Revenue Counsel,
the same is clearly distinguishable on facts at least for two
reasons. One reason is G.P.R.Leathers case pertains to
'Export' and it is a case of alleged misdeclaration. The
second reason is the question there was whether the
consignment is a finished product i.e., finished leather or not
and that was a case where Board Circular No.1/11 dated
04.01.2011 pertaining to 'Export' was dealt with.
7. Likewise, Unik Traders case is also clearly
distinguishable on facts as that was a case pertaining to
disputation qua 'Certificate of Country of Origin' (hereinafter
'Certificate of COO' for brevity). Moreover, Unik Traders
case was carried to Hon'ble Supreme Court vide Special
Leave to Appeal (C) No(s).7096/2019 with SLP(C) No.
7310/2019, SLP(C) No.7320/2019, SLP(C) No.7325/2019,
SLP(C) No.7332/2019 and the Hon'ble Supreme Court vide
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order dated 08.05.2019 sent the matter back to the High
Court. The Single Judge thereafter decided the matter by an
order dated 09.07.2019 in W.P(MD).No.15575 of 2019. It
may not be necessary to dilate any further on facts or
trajectory as Unik Traders case is clearly distinguishable on
facts that being a case of disputation qua Certificate of COO
for a consignment of Aracknut. The case on hand is on a
entirely different footing.
8. In this regard, this Court reminds itself of the oft
cited celebrated Padma Sundara Rao case (Padma Sundara
Rao v. State of Tamil Nadu) reported in (2002) 3 SCC 533,
wherein a Constitution Bench of Hon'ble Supreme Court
wherein the manner in which case law precedents have to be
looked into has been articulated, relevant paragraph in
Padma Sundara Rao case is paragraph 9 and the same reads
as follows:
'9......... There is always peril in
treating the words of a speech or judgment as
though they are words in a legislative
enactment, and it is to be remembered that
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judicial utterances are made in the setting of
the facts of a particular case, said Lord
Morris in Herrington v. British Railways
Board [(1972) 2 WLR 537 : 1972 AC 877
(HL) [Sub nom British Railways Board v.
Herrington, (1972) 1 All ER 749 (HL)]].
Circumstantial flexibility, one additional or
different fact may make a world of difference
between conclusions in two cases.'
9. That leaves us with Al Qahir International case. Al
Qahir International case is virtually identical, only the names
of the importers, quantity of the consignment, dates of
import, dates of bills of entry are different. To be noted, there
is no disputation or disagreement the factual matrix is
identical as between Al Qahir case and the matter on hand
now before this Court. More importantly, Al Qahir
International case has been accepted by the Department and
learned Revenue counsel has placed before me the electronic
mail instructions received by him and a scanned reproduction
of the trail mail is as follows:
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10. Besides the above, this Court is also informed that
the other two orders of two other Single Judges dated
14.07.2021 in M/s.Global Metro v. The Commissioner of
Customs and others and 03.12.2021 in M/s.Southern Trade
Links v. The Deputy Director, Directorate of Revenue
Intelligence have also been accepted by the Department,
complied with and the consignment have been released
(without even carrying the matter on intra-court appeal). To
be noted, one of these three earlier orders was made by me.
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The importer also did not go on appeal. There is no
disputation or disagreement about this aspect of the matter
also.
11. The first of the above mentioned three orders being
order dated 14.07.2021 made in W.P.No.12454 of 2021 made
by another Hon'ble Single Judge is as follows:
'Heard Mr.Vijay Narayan, learned senior
counsel appearing for Dr.S.Krishnandh, learned
counsel for the petitioner and Mr.K.Mohanamurali,
learned Senior Panel Counsel for Customs
Department/R1 to R4 and Mr.V.Sundareswaran,
learned Senior Panel Counsel for the Directorate
of Revenue Intelligence (DRI)/R5 & R6.
2. This Writ Petition challenges, by way of
certiorarified mandamus, communication dated
25.05.2021, which has been issued by R4/Deputy
Commissioner of Customs conveying the decision
of the Chief Commissioner of Customs rejecting the
petitioner's request for provisional release of
consignments of import of black pepper that have
been seized vide seizure memo dated 03.04.2021.
They also seek a direction to the respondents to
release the goods provisionally in terms of Section
110A of the Customs Act 1962 (in short 'Act') and
issue Demurrage-cum-Detention Waiver
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Certificate for waiver of Demurrage and Container
Detention Charges, in respect of the said goods in
terms of Section 6(1)(l) of Handling of Cargo in
Customs Areas Regulations 2009 read with
Regulation 10(1)(l) of Sea Cargo Manifest and
Transhipment Regulations, 2018.
3. The petitioner has imported five
consignments vide Bill of Entry Nos. 3185706
dated 17.03.2021, 3212240 dated 19.03.2021,
3256382 dated 23.03.2021, 3256389 dated
23.03.2021 and 3308760 dated 26.03.2021. The
petitioner sought release of the consignments, both
before the DRI as well as the authorities under the
Customs Act, being the Commissioner of Customs
as well as the Chief Commissioner of Customs. A
detailed communication of the DRI dated
26.04.2021 indicates certain concerns that the DRI
had entertained in regard to the consignments
imported.
4. The crux of the litigation turns upon the
valuation of the consignments in question, as
Notification No.21/2015-20 dated 25.07.2018
(Notification in question) permits entry of black
pepper falling under Entry No.0904 11 30 only if
the CIF value of the import was Rs.500/- per kg or
above. Imports of value less than Rs.500/- per kg is
prohibited. It was the apprehension of the DRI that
the goods have been over valued by the petitioner
in order to render them freely importable, the word
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'free' being used in the context of 'permitted to be
imported', as the commodities are otherwise
subject to duty at the rate of 8%.
5. Being of the view that the value of the
consignments was in excess of what was the true
value, investigation was undertaken by the DRI.
The ongoing investigation takes note of various
documents that appear to indicate that the pricing
of the commodity was less than that revealed by the
petitioner and also that full consideration had not
been remitted to the supplier overseas. Moreover,
the DRI states that it is in possession of
information to the effect that sales of the
consignments importer earlier had been
undertaken by the petitioner in the open market at
a sum less than the import value.
6. On the basis of the aforesaid material
stated to have been gathered by the DRI, the
apprehension that arose was that the goods had
been consciously inflated in value merely to enable
their import in terms of the Notification in
question. This narration is captured in the
communication of DRI dated 26.04.2021 issued to
the Deputy Commissioner of Customs, wherein, in
conclusion they say that investigation was under
progress and that the report would be forwarded to
the Customs Department, post completion. As far
as release is concerned, the ball is placed in the
court of customs, the DRI leaving it to the customs
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authorities to consider the request for release in
terms of Section 110 A of the Act.
7. The final stand of the DRI however, as
conveyed vide communication dated 15.04.2021,
paragraph 2 is categoric to the effect that 'this
office does not have any objection for provisional
release of the said goods'. They continue to state at
paragraph 3 that 'It is herein requested that the
said goods may be provisionally released as per
the conditions stipulated under section 110 A of
Customs Act, 1962.'. Thus the DRI before whom
the investigation is stated to be on-going in regard
to the valuation of the goods has expressed no
objection for the release of the same.
8. Based on the communication of the DRI
dated 15.04.2021, the Deputy Commissioner/R2 on
05.05.2021 communicates to the petitioner that the
request for provisional release was rejected by the
adjudicating authority. There is some confusion as
to who is the adjudicating authority in this case, as
in the communications of the Deputy
Commissioner of Customs, she merely refers to the
rejection of request by the 'adjudicating authority'
without specifying who that authority is. Petitioner
before me is also unable to clarify this issue.
9. The request of the petitioner before the
Chief Commissioner (who is not arrayed as a party
before me) has been rejected and conveyed to the
petitioner by the Deputy Commissioner under
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impugned order dated 25.05.2021. The order is
cryptic and merely rejects the request stating that
the import of the goods was prohibited as per the
policy condition. It appears to me that the cart has
been put before the horse, as admittedly
investigation is presently on-going.
10. The crux of the apprehensions are as follows:
3. Investigation has revealed the
following:
The imports of Black Pepper from Sri
Lanka by M/s Global Metro in controlled by Shri
Arshad Shajahan.
M/s Global Metro has imported black
pepper by declaring the unit price in the range
of Rs 501 to Rs. 512/kg. The terms of payment as
per the Invoice in most cases is around 50% on
DP/DAP terms i.e. Documents against Payment
and balance on DA terms L.e. Documents
against Acceptance. The time limit for making
DA payment is 90 days to 120 days as per
commercial Invoice.
The said importer has made payments to
the overseas muppliers only to an extent of
payment against DP terms as per the
Commercial Invoice. However, he has not paid
the balance amount to the overseas supplier
even after the expiry of time period of 90-120
days. He has accepted all the imported Black
Pepper without raising any objection with the
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overseas suppliers on quality issues, in sum,
there is no reason recorded by M/s Global Metro
to make the lower payments.
As per the documents recovered such as
Sales Contract, email communication recovered
during the search of the premises of M/s Global
Metro it is found that the actual unit price of
Black Pepper imported by M/s Global Metro
from Sri Lanka is between USD 3- USD 4 per
Kg L.e. much below the declared unit price of
Rs. 500 per Kg and less than the MIP specified
in the FTP making the goods prohibited.
On receipt of such imported black pepper
from M/s Global Metro has sold them in the
domestic market at a Unit price in the range of
Rs. 300- Rs. 425/kg although the unit price of
Rs. 502-Rs. 515/kg has been declared to the
Customs authorities for the said imports.
Further, the total value of import of Black
Pepper by M/s Global Metro, as declared to
Customs, for the period from May-2020 till date
is around 31 Crores. However, it appears that
M/s Global Metro has paid only around half of
the said amount to their overseas suppliers of
Black Pepper in Sri Lanka as per their Bank
accounts Statements. Shri Arshad Shajahan of
M/s Global Metro has confirmed in his
statement that the balance amount to be paid to
the Overseas Supplier would never be paid. The
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content of statement was corroborated by the
documents found during investigation.
The above facts have been evidenced by
the analysis of bank statements, email
communications, e-way bills and the informal
accounts maintained by relevant entities.
11. No details of incriminating material have been
furnished that would substantiate the conclusion that the
goods have been inflated in value. As far as the balance of
the consideration remaining to be paid to the overseas
supplier, this is a matter of negotiation between the supplier
and the importer and would not concern the statutory
authorities in the matter of valuation of the goods. There are
also certain statements that appear to have been recorded in
the course of the on-going investigation. All in all, the
apprehensions expressed are, as of now, just apprehensions,
and would have to be supported by tangible material in order
to establish a prima facie case against the petitioner.
12. I am given to understand by the learned Senior
Standing Counsels for the Customs Department as well as for
the DRI that the process of investigation would take some
time and cannot be hurried.
13. The commodity in question is agricultural
produce. The variety of black pepper imported is stated to be
specific to the region of Srilanka, an important ingredient in
the making of spices used in Indian cuisine, with a short shelf
life. Assuming for the sake of argument that investigation is
concluded in favour of the petitioner, if the provisional
release is not granted, the entire consignments would have
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been compromised. The balance of convenience would thus
require, in my considered view, that the consignments be
released, subject to the petitioner being put to terms. This
would also ensure that the interests of the Department are
securely protected. The petitioner will remit the entire duty
and furnish bond to the satisfaction of the Assessing
Authority in regard to interest payable, penalty or charges
that may be deemed necessary.
14. The impugned order is set aside. It is made clear
that nothing contained in this order will stand in the way of
an independent enquiry by the authorities in the on-going
investigation. The Deputy Commissioner of Customs/R3 is
directed to quantify the duty and bond amounts and
communicate the same to the petitioner forthwith and release
the goods within a week of such remittance by the petitioner.
15. On the issue of waiver of demurrage charges, the
issue is left open to be pursued before the authorities in the
light of applicable Rules and Regulations.
16. This Writ Petition is disposed as above. No costs.
Connected Miscellaneous Petitions are closed.'
12. The sequitur is, the prayer in the captioned writ
petition deserves to be acceded to by respectfully following
the ratio of Hon'ble Division Bench in Al Qahir International
case. Therefore, the captioned main writ petition and
connected W.M.P are disposed of with the following
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.9799 of 2021
directives and observations:
(a) The second respondent i.e., the Joint
Commissioner of Customs is directed to quantify
the duty, bond amounts etc., communicate the
same to the petitioner forthwith and release the
said consignment within one week of said
remittance i.e., quantified duty/bond
amounts/execution of bonds by the petitioner;
(b) It is made clear that nothing
contained in this order will stand in the way of
an independent inquiry by the authorities in the
ongoing investigation. In other words, show
cause notice adjudication can proceed and the
same can be carried to its logical end on its own
merits and in accordance with law
uninfluenced/untrammelled by any view or
opinion expressed by this Court. Though obvious,
I make it clear that I have not expressed any view
or opinion on the merits of the matter qua
allegations of which the said consignment has
been seized;
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W.P.(MD)No.9799 of 2021
(c) On the issue of waiver of demurrer
charges, the issue is left open to be pursued by
the authorities in the light of applicable rules
and regulations.
There shall be no order as to costs.'
6. In the light of the undisputed position that the matter is directly
and squarely covered and in the light of the fact that M/s.Travancore
Solvents & Oils case has been made by following orders of Hon'ble
Division Bench, there shall be a similar order in this matter also. To be
noted, the earlier orders have been complied and there has been
provisional release of the consignment which has been captured in the
aforementioned order.
7. The sequitur is, the prayer in the captioned writ petition deserves
to be acceded to by respectfully following the ratio of Hon'ble Division
Bench in Al Qahir International case. Therefore, the captioned main
writ petition and connected W.M.P are disposed of with the following
directives and observations:
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.9799 of 2021
(a) The second respondent i.e., the Joint
Commissioner of Customs is directed to quantify the
duty, bond amounts etc., communicate the same to the
petitioner forthwith and release the said consignment
within one week of said remittance i.e., quantified
duty/bond amounts/execution of bonds by the
petitioner;
(b) It is made clear that nothing contained in
this order will stand in the way of an independent
inquiry by the authorities in the ongoing investigation.
In other words, show cause notice, adjudication can
proceed and the same can be carried to its logical end
on its own merits and in accordance with law
uninfluenced/untrammelled by any view or opinion
expressed by this Court. Though obvious, this Court
makes it clear that no opinion or view has been
expressed on the merits of the matter qua allegations
on which the said consignment has been seized;
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W.P.(MD)No.9799 of 2021
(c) It is made clear that the issue of waiver of
demurrage charges will be governed by the applicable
Rules and Regulations.
There shall be no order as to costs.
01.02.2022
Index : Yes / No
Internet : Yes / No
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To
1. The Commissioner of Customs,
Custom House, New Harbour Estate,
Tuticorin – 628 004.
2. The Assistant Commissioner of Customs (Imports),
Custom House, New Harbour Estate, Tuticorin – 628 004.
3. The Deputy Director,
Directorate of Revenue Intelligence,
22/14, Celin Garden, Roche Colony,
South Beach Road,
Tuticorin – 628 001.
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W.P.(MD)No.9799 of 2021
M.SUNDAR., J.
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W.P.(MD)No.9799 of 2021
01.02.2022
https://www.mhc.tn.gov.in/judis
