Madras High Court
M/S.Kutty Impex vs The Commissioner Of Customs – Ii on 23 March, 2022
W.P.Nos.1393 of 2022, etc., batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.03.2022
CORAM :
THE HONOURABLE MR. JUSTICE R.SURESH KUMAR
W.P.Nos.1393, 1396, 1398, 1403, 1404, 1414, 1421,
1424, 1427, 1429 & 1431 of 2022
and
W.M.P.Nos.1531, 1537, 1541, 1545, 1546, 1561,
1564, 1568, 1570, 1572 & 1576 of 2022
W.P.No.1393 of 2022
M/s.Kutty Impex,
No.43/83, T.T.K. Road,
Alwarpet, Chennai – 600 018.
Represented by its Proprietoress S.Mekala ...Petitioner
Vs.
1.The Commissioner of Customs – II,
No.60, Rajaji Salai,
Customs House, Chennai – 600 001.
2.The Additional Commissioner of Customs (Gr.5),
No.60, Rajaji Salai,
Customs House, Chennai – 600 001.
3.The Deputy Commissioner of Customs (Gr.5),
No.60, Rajaji Salai,
Customs House, Chennai – 600 001. ...Respondents
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Page 1 of 14
W.P.Nos.1393 of 2022, etc., batch
Prayer in W.P.No.1393 of 2022: Writ Petition filed under Article 226 of
the Constitution of India for issuance of a Writ of Mandamus, directing
the respondents herein to forthwith provisional release 463 units of old &
used digital multifunction print, scan & copying, machines of A3 size
vide Bill of Entry No.3193230 dated 11.05.2019 on payment of
applicable total Customs Duty on the value enhanced by the Chartered
Engineers' M/s.National Marine Consultants Inc, Chennai, vide their
Report No.NMCI/IND/C/19-20/064 dt. 23.05.2019 in line with the
directions of this Court in Nos.8574, 8576, 11151, 11157, 11165, 11371,
8575, 11049 & 11113 dated 25.01.2021.
For Petitioner : Mr.AR.L.Sundaresan
(in all WPs) Senior Counsel
for Mrs.AL.Gandhimathi
For Respondents : Mrs.R.Hemalatha
(in all WPs) Senior Standing Counsel
*****
COMMON ORDER
Since the issue raised in these writ petitions is one and the same,
with the consent of Mr.AR.L.Sundaresan, learned Senior Counsel
appearing for the petitioners and Mrs.R.Hemalatha, learned Senior
Standing Counsel appearing for the respondents, these writ petitions
were heard together and are being disposed of by this common order.
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W.P.Nos.1393 of 2022, etc., batch
2. The petitioners have imported a machine or goods called
Multi-Function Devices from foreign country sometime in the year 2019
to 2021 at various dates. The dates depends upon the bill of lading.
However, according to the learned Senior Counsel appearing for the
petitioners, these goods were imported prior to 18.09.2021 based on the
date of lading as well as the date of bill of entry except in one or two
cases.
3. The main controversy arose in this batch of cases is that,
during the pendency of withholding of the goods concerned, whether
these goods can be released by way of provisional release under the
provisions of the Customs Act.
4. Mr. AR.L.Sundaresan, learned Senior Counsel appearing for
the petitioners has in fact submitted that, the issue raised in these writ
petitions, especially in the context of prayer sought for in these writ
petitions are covered by the earlier decision of this Court, which has been
confirmed by the Hon'ble Supreme Court.
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W.P.Nos.1393 of 2022, etc., batch
5. He has brought to the notice of this Court that, in fact, similar
issue had come up for consideration before this Court in a batch of writ
petitions in W.P.No.8574 of 2020, etc., batch in the matter of M/s. Best
Mega International Vs. The Commissioner of Customs, Chennai and
others, where a learned Judge of this Court by a common order dated
25.01.2021 having considered these aspects, where also similarly placed
persons sought for a Mandamus for releasing of the similar goods by way
of provisional release, had passed the following order :
“16. I summarise the discussion below:
i) The Hon'ble Supreme Court has consistently
taken a view in favour of provisional release in such
cases, noticing that in identical cases, release has been
ordered and there would be no justification to take a
contra view in a few cases alone.
ii) The issue on merits has been held in favour of
the assesse by a Division Bench of the High Court of
Telangana at Hyderabad in the case of RR Marketing
(supra) and there is no stay of this order by the Supreme
Court. Rather provisional release has been ordered in
this case as well.
iii) The Appellate Authorities, both at the first
and second levels of the hierarchy, have held the matters
in favour of the assesses on merits. Some such orders
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W.P.Nos.1393 of 2022, etc., batch
have become final. The distinction as to whether the
relief of release is sought by way of Mandamus or by
way of interim relief in a writ of Declaration is thus, not
material.
17. These Writ Petitions are allowed. The
consignments in question will be released upon
remittance of the enhanced duty as quantified based
upon the valuation of a certified Engineer. Adjudication
proceedings to be initiated/will continue to be
concluded, as expeditiously as possible. No costs.
Connected Miscellaneous Petitions are closed.”
6. He would also submit that, as against the said orders passed
by the Writ Court, in fact intra-Court appeals have been filed in
W.A.No.642 of 2021, etc., in the matter of The Commissioner of
Customs, Chennai and others Vs. M/s. Best Mega International and
another.
7. The Division Bench having considered the matter at length
has ultimately concluded that, the order passed by the learned Judge in
the Writ Court directing the Revenue to release the goods in question by
way of provisional release was to be set aside, accordingly, by setting
aside the order had allowed the Writ Appeals and further directed the
Customs Department to consider the application filed by the respective
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W.P.Nos.1393 of 2022, etc., batch
writ petitioners therein for provisional release and pass orders on merits
and in accordance with law within a time frame.
8. He would also submit that, as against the said order passed by
the Division Bench, dated 04.03.2021 in Best Mega International case
(cited supra), Special Leave Petitions were filed. Those Special Leave
Petitions having been tagged with some similar matters in M/s. Delhi
Photocopiers Vs. The Commissioner of Customs, Chennai and others
were heard. The Hon'ble Supreme Court has passed the following order
on 11.08.2021 :
“On 05.07.2021, this Court had issued notice in
these matters. Despite the fact that the matter was
pending before this Court, the Department went ahead
and confiscated the goods which are the subject matter
of these petitions on 17.07.2021. Mr.N.Venkataraman,
learned ASG, realizing the difficulty in his way, has
asked the Department to stay its hands so far as the
confiscation is concerned. We see no reason to differ
from a number of orders that have been passed by this
Court in the past for provisional release of goods.
However, it has been pointed out to us that at least on
and from 01.04.2020, the goods, according to the
Department, are clearly prohibited goods and on and
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W.P.Nos.1393 of 2022, etc., batch
from this date, unless an order is made under Section
125, the goods must stand confiscated.
We stay the confiscation of these goods. The
Notification dated 01.04.2020 is the subject matter of
controversy before this Court, particularly in view of a
subsequent Notification dated 18.03.2021 that has been
pointed out by Mr.Arvind Datar, learned Senior
Counsel. We, therefore, allow the goods involved in
these petitions, to be provisionally released on the same
terms that have been indicated in all the other cases. The
order dated 18.09.2020 may, in particular, be looked at
for this purpose.
In view of above, the Special Leave Petitions are
disposed of.
Pending interlocutory application(s), if any, is/are
disposed of.”
9. Relying upon these decisions, the learned Senior Counsel
would point out that, in these cases also, since the petitioners sought for a
provisional release, that prayer can be allowed on same terms, which
have been given by the Writ Court referred to above as has been
confirmed by the Hon'ble Supreme Court in the order referred to above.
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W.P.Nos.1393 of 2022, etc., batch
10. However, Mrs.R.Hemalatha, learned Senior Standing
Counsel appearing for the respondent Revenue would point out that, as
per notification dated 01.04.2020, the goods in question, which are
sought to be released by way of provisional release are prohibited goods
and in respect of the notification, which was recently issued on
18.03.2021 is concerned, these Multi-Function Devices, which are
exactly imported by these petitioners have been brought under the
category of printers, which have already been considered to be an
importable goods have been given effect to only after six months from
the date of notification. If that being so, since the notification was issued
on 18.03.2021 it would take effect only from 18.09.2021 i.e., after six
months, before which, whatever the goods imported, according to the
petitioners, though can be considered as a goods can be permitted, in
view of the notification dated 01.04.2020, these goods, since are
prohibited goods, they are not entitled for even provisional release.
Therefore, the Revenue can go ahead with the adjudication process,
which may lead to the logical conclusion under the provisions of the
Customs Act. Therefore, citing these reasons, the learned Senior
Standing Counsel appearing for the respondents opposed the prayer
sought for in these writ petitions.
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W.P.Nos.1393 of 2022, etc., batch
11. I have considered the said rival submissions made by the
learned counsel appearing for the parties and perused the materials
placed before this Court.
12. Whether a notification has been issued on 18.03.2021 under
which, the goods in question, namely Multi-Function Devices are
brought under the category of printers with effect from 18.09.2021, based
on which, whether the petitioners are not entitled to get it released and
also based on 01.04.2020 notification, whether the goods which are in
question are prohibited goods or not, all these matters are pending before
the law Courts.
13. In this regard, the policy decision taken by the Government
i.e., the Revenue has already been put under challenge in a batch of cases
before this Court, which are said to be pending.
14. Moreover, in the order dated 11.08.2021, the Hon'ble
Supreme Court has taken note of these factors, where the arguments
advanced on behalf of the Revenue before the Hon'ble Supreme Court
was that, on and from 01.04.2020, the goods, according to the
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W.P.Nos.1393 of 2022, etc., batch
Department, are clearly prohibited goods and on and from that date,
unless an order is made under Section 125 of the Customs Act, the goods
stands confiscated, the Hon'ble Supreme Court had stayed the
confiscation process and also has observed that, the notification dated
01.04.2020 is the subject matter of controversy before the Hon'ble
Supreme Court, particularly in view of the subsequent notification dated
18.03.2021. Therefore, the goods which are in question were allowed to
be released by way of provisional release on the same terms and
conditions, which means, the enhanced duty has to be paid by the
petitioners/importers as a condition precedent for getting release of these
goods by way of provisional release.
15. Therefore, as of now, unmindful of the pendency of the
litigations with regard to the applicability or otherwise of the
notifications, namely notification dated 01.04.2020 or 18.03.2021,
independently the prayer sought for by way of Mandamus can be
considered and granted, because of the aforestated judgments, where, the
learned Single Judge order dated 25.01.2021 has been confirmed by the
Hon'ble Supreme Court by order dated 11.08.2021 by reversing the
Division Bench order dated 04.03.2021.
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W.P.Nos.1393 of 2022, etc., batch
16. In that view of the matter, the arguments advanced by the
learned Senior Counsel appearing for the petitioners that, the issue raised
in these writ petitions especially in the context of the prayer of
Mandamus sought for herein is covered by the said decision of the Court
of Law including the decision of the Hon'ble Supreme Court dated
11.08.2021 is to be accepted.
17. In that view of the matter, these writ petitions are disposed
of with the following orders :
(i) That there shall be a direction to the respondents to
consider the plea of the petitioners to release the
goods by way of provisional release on condition
that, the petitioner shall pay/deposit the enhanced
duty amount. On receipt of such enhanced duty
amount paid by the petitioners, the goods in
question shall be released within a period of three
weeks thereafter.
(ii) For payment of such duty, quantification shall be
made by the Customs forthwith within one week
from the date of receipt of a copy of this order. On
receipt of such quantification, the payment shall be
immediately made by the petitioners and on receipt
of the payment in entirety, the goods shall be
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W.P.Nos.1393 of 2022, etc., batch
released as indicated above at the outer limit of
three weeks.
(iii) It is made clear that, this order will not stand in the
way for Customs Department to go ahead with the
further proceedings including the adjudication in
the manner known to law.
(iv) It is further made clear that, in the earlier interim
order passed in a related writ petitions by an
another Division Bench of this Court, that
demurrage charges till date for the goods was
directed to be considered for waiver. In this regard,
if any application is filed by the petitioners seeking
such a waiver of demurrage charges, the same shall
be considered and decided by the respondents
objectively.
18. With these observations and directions, all the Writ
Petitions are ordered accordingly. No costs. Consequently, connected
miscellaneous petitions are closed.
23.03.2022
Index : Yes / No
Speaking order / Non Speaking order
sp/sgl
https://www.mhc.tn.gov.in/judis
W.P.Nos.1393 of 2022, etc., batch
To
1.The Commissioner of Customs – II,
No.60, Rajaji Salai,
Customs House, Chennai – 600 001.
2.The Additional Commissioner of Customs (Gr.5),
No.60, Rajaji Salai,
Customs House, Chennai – 600 001.
3.The Deputy Commissioner of Customs (Gr.5),
No.60, Rajaji Salai,
Customs House, Chennai – 600 001.
https://www.mhc.tn.gov.in/judis
W.P.Nos.1393 of 2022, etc., batch
R.SURESH KUMAR, J.
sp/sgl
W.P.Nos.1393, 1396, 1398, 1403,
1404, 1414, 1421,1424,
1427, 1429 & 1431 of 2022
23.03.2022
https://www.mhc.tn.gov.in/judis
