Madras High Court
M/S.S.K.Automation vs The Commissioner Of Customs on 5 September, 2024
Author: Krishnan Ramasamy
Bench: Krishnan Ramasamy
W.P.No.25025 of 2024 & etc., batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.09.2024
CORAM
THE HONOURABLE MR. JUSTICE KRISHNAN RAMASAMY
W.P.Nos.26025, 26030, 26033, 26035, 26037, 26039 & 26040 of 2024 &
connected miscellaneous petitions
W.P.No.26025 of 2024
M/s.S.K.Automation,
New No.14, (Old No.11), Kammalar Street,
Thousand Light, Chennai - 600 006.
Rep. by its Proprietor, Mr.Kiran Chand Chhajer . ... Petitioner
Vs.
1. The Commissioner of Customs,
Chennai II Import Commissionerate,
Custom House, No.60, Rajaji Salai,
Chennai - 600 001.
2. The Additional Commissioner of Customs (Gr-5),
Chennai II Import Commissionerate,
Custom House, No.60, Rajaji Salai,
Chennai - 600 001.
3. The Deputy Commissioner of Customs (Gr-5),
Custom House, No.60, Rajaji Salai,
Chennai - 600 001. ... Respondents
PRAYER: This Writ Petition is filed under Article 226 of the Constitution of India, for
the issuance of a Writ of Mandamus, to direct the respondents 1 to 3 herein to
forthwith to allow provisional release of the consignment of 113 Units of various
models of Secondhand Highly Specialized Equipment -Digital Multifunction Print,
Copying & Scanning Machines, imported by the petitioner and which have been
submitted for clearance before the respondents vide a Bill of Entry No.4366714,
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W.P.No.25025 of 2024 & etc., batch
dated 06.07.2024 on execution of simple bond for 100% of enhanced value of goods
and also payment of applicable total GST (Customs Duty is exempted) on the
enhanced value, as appraised by the Chartered Engineers M/s.APGM Engineering
Services Pvt. Ltd., in their report No.APGM/2425/A320, dated 11.07.2024.
For Petitioner : Mr.Akash Srinanda V.
For Respondents : Mr.J.Harikrishna
Junior Panel Counsel
For Mr.B.Ramana Kumar
Senior Panel Counsel
-----
COMMON ORDER
These Writ Petitions have been filed to direct the respondents 1 to 3
herein to forthwith release various models of Secondhand Highly Specialized
Equipment - Digital Multifunction Print, Copying & Scanning Machines, imported by
the petitioners.
2. According to the petitioners, the issue involved in these Writ
Petitions is covered by a judgment of this Court dated 18.12.2023 passed in
W.P.Nos.35145 of 2023, etc., batch. Hence, he would urge this Court to pass
similar order in the present Writ Petitions also.
3. In the present batch of cases, subsequent to the order passed by
this Court, a Notification No.13/2024-25 was issued on 20.05.2024, whereby the
import of the subject items were prohibited.
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W.P.No.25025 of 2024 & etc., batch
4. Now, the issue before this Court is that whether the petitioners are
entitled to the release of the various models of Secondhand Highly Specialized
Equipment - Digital Multifunction Print, Copying & Scanning Machines, imported by
the petitioners prior to the Notification No.13/2024-25, dated 20.05.2024?
5. The learned counsel for the petitioners would submit that for all
practical purposes, the date of reckoning of import would be decided with reference
to the date of shipment/dispatch of goods and not the date of arrival of goods at an
Indian Port. He refers to the Hand Book of Procedures issued by the DGFT, where
Chapter - 1 is pertaining to the Legal Framework and Trade Facilitation. He refers to
Clause 2.17, which deals with the date of reckoning of import/export and reads as
follows:-
2.17 Date of reckoning of Import/ Export
(a) Date of reckoning of import is decided with reference to
date of shipment / dispatch of goods from supplying country as given
in Paragraph 11.11 of Handbook of Procedures and not the date of
arrival of goods at an Indian Port.
(b) Date of reckoning of export is decided with reference to
date of shipment/ dispatch of goods from India as given in Paragraph
11.12 of Handbook of Procedures. However, for benefit under FTP, Let
Export Order (LEO) date shall be the date of reckoning of export.
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W.P.No.25025 of 2024 & etc., batch
By referring to the above said Clause, the date of reckoning of import would be the
date of shipment/ dispatch of goods. In this regard, the learned counsel for the
petitioners refer to Clause 11.11, which reads as follows:-
11.11 Date of shipment/Dispatch in respect of Imports:
Date of shipment/dispatch for imports will be reckoned as under:-
S.No Mode of Date of Shipment / Dispatch
Transportation
(i) By Sea The date affixed on the Bill of Lading
(ii) By Air Date of relevant Airway Bill provided
this represents date on which goods
left last airport in the country from
which the import is effected.
Therefore, he would submit that the date of reckoning for the import would be the
date of the Bill of Lading.
6. In the present cases, the Bills of Lading were issued well before the
date of the impugned Notification dated 20.05.2024. In W.P.No.26025 of 2024, the
Bill of Lading is dated 23.04.2024; in W.P.No.26030 of 2024, it is dated 17.05.2024;
in W.P.No.26033 of 2024, it is dated 15.04.2024; in W.P.No.26035 of 2024, it is dated
26.04.2024; in W.P.No.26037 of 2024, it is dated 07.04.2024; in W.P.No.26039 of
2024, it is dated 17.05.2024 and in W.P.No.26040 of 2024, it is dated 16.04.2024.
Therefore, the learned counsel for the petitioners would submit that the said
Notification will not be applicable to the petitioners, who had already initiated the
process of import and the bills of lading were raised.
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W.P.No.25025 of 2024 & etc., batch
7. Mr.J.Harikrishna, learned Junior Panel Counsel would submit that for
all practical purposes, the bill of lading would be the date of shipment. He fairly
submits that the bills of lading in the present batch of cases would be dated before
the date of impugned Notification dated 20.05.2024. Therefore, the order passed by
this Court in W.P.Nos.35145 of 2024 etc., batch in the case of M/s.Atul
Commodities Private Limited Vs. The Commission of Customs (Chennai II)
Import, Chennai and Others, dated 18.12.2023, will hold in respect to the
present Writ Petitions also.
8. Accordingly, following the above order, this Court is inclined to pass
the following order:-
(a) 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 petitioners 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 (3) weeks thereafter.
(b) For payment of such duty, quantification shall be made by the
Customs forthwith within one (1) week from the date of receipt of a copy of
this order. On receipt of such quantifications, the payment shall be
immediately made by the petitioners and on receipt of the payment in
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W.P.No.25025 of 2024 & etc., batch
entirety, the goods shall be released as indicated above at the outer limit of
three (3) weeks.
(c) 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.
(d) 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.
9. With the above directions, these Writ Petitions are disposed of.
There shall be no order as to costs. Consequently, the connected Miscellaneous
Petitions are closed.
05.09.2024
rns
Index: Yes / No.
Speaking order/ Non-speaking order
Neutral Citation: Yes / No.
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W.P.No.25025 of 2024 & etc., batch
To
1. The Commissioner of Customs,
Chennai II Import Commissionerate,
Custom House, No.60, Rajaji Salai,
Chennai - 600 001.
2. The Additional Commissioner of Customs (Gr-5),
Chennai II Import Commissionerate,
Custom House, No.60, Rajaji Salai,
Chennai - 600 001.
3. The Deputy Commissioner of Customs (Gr-5),
Custom House, No.60, Rajaji Salai,
Chennai - 600 001.
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W.P.No.25025 of 2024 & etc., batch
KRISHNAN RAMASAMY, J.
rns
W.P.Nos.26025, 26030, 26033, 26035,
26037, 26039 & 26040 of 2024 &
connected miscellaneous petitions
05.09.2024
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