Madras High Court
M/S. Be Office Automation Product ... vs The Commissioner Of Customs on 6 June, 2023
W.P.No.24911 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.06.2023
CORAM :
THE HONOURABLE DR.JUSTICE ANITA SUMANTH
W.P.No.24911 of 2022
and W.M.P.Nos. 23849 & 23850 of 2022
M/s. BE Office Automation Product (P) Ltd.,
Plot No.10 A, Phase III, Gangyol,
Jammu – 180 010
rep. By its Director
Mr.Ram Bhagat Yadav .. Petitioner
vs
1.The Commissioner of Customs
Chennai II Customs Commissionerate,
Customs House, 60 Rajaji salai,
Chennai 600 001.
2.The Additional Commissioner of Customs (Group 5)
Chennai II Customs Commissionerate,
Customs House, 60 Rajaji Salai,
Chennai 600 001. .. Respondents
Petition filed under Article 226 of the Constitution of India praying to
issue a writ of certiorarified mandamus to call for the records
pertaining to order dated 17.08.2022 passed by 2nd respondent
herein to quash the same and passed contrary to law and in
violation of Art.14 and 19(1) (g) of the Constitution and
consequently direct the 2nd respondent herein to forthwith
provisionally release the goods viz., used Multifunction Digital Print
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W.P.No.24911 of 2022
and Copying Machines (MFDs) imported by the petitioner herein
under BE Nos. 8286002/02.10.18; 8467841/15.10.18,
7884546/03.09.18 and 7917595/05.09.18 on the same terms and
conditions as ordered by the Hon'ble Supreme Court in its orders
dated 11.08.2021 in S.L.P.No.7565 of 2021.
For Petitioner : Mr.N.Viswanathan
For Respondents : Mrs.R.Hemalatha
Senior Standing Counsel
ORDER
The petitioner seeks a certiorified mandamus calling for and
quashing order dated 17.08.2022 passed by the Additional
Commissioner of Customs / R2. It consequentially seeks a direction
to R2 to forthwith provisionally release used Multifunction Digital
Print and Copying Machines in BE Nos. 8286002/02.10.18;
8467841/15.10.18, 7884546/03.09.18 and 7917595/05.09.18
(MFDs / goods in question).
2. The petitioner relies on the judgment of the Hon'ble
Supreme Court in the case of Delhi Photocopiers v the
Commissioner of Customs dated 11.08.2021 in S.L.P.(c) No. 7565
of 2021.
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W.P.No.24911 of 2022
3. Though a counter has been filed by the respondents
objecting to the averments in the writ affidavit, learned Standing
Counsel would point out that there has been a shift in the legal
position and pre and post 17.09.2021. Prior to 17.09.2021, import
of goods in question was 'restricted' whereas post 17.09.2021, such
imposition stands prohibited. The judgment of the Hon'ble Supreme
Court in S.L.P.(C) No. 7565 of 2020 dealt with a challenge by the
respondents to orders of this Court whereunder directions had been
given for provisionally release goods similar to the goods in
question, on terms, and complete the process of adjudication within
a fixed time frame. In that context, the Hon'ble Court directs
provisional release referring to several other orders passed by the
Hon'ble Court along similar lines. The order extracted below:-
“We have heard the learned senior
counsel appearing for the petitioner(s) and Mr.
N. Venkataraman, learned Additional Solicitor
General appearing for the respondent(s) at
length.
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 3 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
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W.P.No.24911 of 2022
from 01.04.2020, the goods, according to the
Department, are clearly prohibited goods and
on and 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.”
4. In light of the aforesaid judgment, learned Standing
Counsel does not very seriously object to this Court directing
provisional release of the goods in question. Needless to say, a final
view will be taken based on the adjudication proceedings.
5. Learned counsel for the petitioner confirms categorically
that enhanced duty will be remitted. He makes a prayer for waiver
of demurrage, which may be addressed to the appropriate
respondent for consideration in accordance with law and applicable
regulations.
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W.P.No.24911 of 2022
6. The impugned order is set aside and the goods shall be
released within a period of two weeks from today on payment of
enhanced duty.
7. Writ petition stands disposed with above directions. No
costs. Connected miscellaneous petitions are closed.
06.06.2023
Index:Yes/No
Neutral Citation:Yes
ssm
To
1.The Commissioner of Customs
Chennai II Customs Commissionerate,
Customs House, 60 Rajaji salai,
Chennai 600 001.
2.The Additional Commissioner of Customs (Group 5)
Chennai II Customs Commissionerate,
Customs House, 60 Rajaji Salai,
Chennai 600 001.
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W.P.No.24911 of 2022
DR. ANITA SUMANTH,J.
ssm
W.P.No.24911 of 2022
06.06.2023
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