Madras High Court

M/S.Salim Enterprises vs The Commissioner Of Customs on 10 September, 2024

Author: Krishnan Ramasamy

Bench: Krishnan Ramasamy

                                                                               W.P.Nos.25684 & 25686 of 2024


                                      IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 10.09.2024

                                                         CORAM

                                  THE HONOURABLE MR. JUSTICE KRISHNAN RAMASAMY

                                          W.P.Nos.25684 & 25686 of 2024 &
                                          W.M.P.Nos.28060 & 28064 of 2024


                M/s.Salim Enterprises,
                Shop No.G 6/79,
                Shyam Lal Marg, Daryaganj,
                New Delhi - 110 002.
                Represented by its Proprietor,
                Mohd. Salim.                              ... Petitioner in W.P.No.25684 of 2024

                M/s.Arka Business Solutions,
                Unit No.203, 2nd Floor Suite No.395,
                SBRS CV Towers Sy.No.64,
                Hi-Tech City Road, Madhapur,
                Hyderabad - 500 081.
                Represented by its Partner,
                Mr.Akhil Pritatam K.                      ... Petitioner in W.P.No.25686 of 2024


                                                   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 in both
                                                             writ petitions

https://www.mhc.tn.gov.in/judis
                1 of Page 8
                                                                               W.P.Nos.25684 & 25686 of 2024




                PRAYER in W.P.No.25684 of 2024: 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 release the various models of Secondhand
                Highly Specialized Equipment namely used Digital Multifunction Print, Copying &
                Scanning Machines, numbering 120 units imported by the petitioner under Bill of
                Entry No.4271043, dated 01.07.2024 on assessment and collection of the applicable
                customs duties leviable on the said goods by computing the said duties on the
                enhanced value, as appraised by the DGFT approved Chartered Engineers
                M/s.PERFECT CHARTERED ENGINEERS AND SURVEYORS in their report Certificate
                No.PER/CEC/IMP/SEA-217/2024-25, dated 10.07.2024.




                PRAYER in W.P.No.25686 of 2024: 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 release the various models of Secondhand
                Highly Specialized Equipment namely used Digital Multifunction Print, Copying &
                Scanning Machines, numbering 108 units imported by the petitioner under Bill of
                Entry No.4271538, dated 01.07.2024 on assessment and collection of the applicable
                customs duties leviable on the said goods by computing the said duties on the
                enhanced value, as appraised by the DGFT approved Chartered Engineers
                M/s.PERFECT CHARTERED ENGINEERS AND SURVEYORS in their report Certificate
                No.PER/CEC/IMP/SEA-215/2024-25, dated 09.07.2024.


                                  For Petitioner in
                                  both Writ Petitions : Mr.N.Viswanathan

                                  For Respondents in
                                  both Writ Petitions : Mr.J.Harikrishna
                                                        Junior Panel Counsel
                                                         -----


https://www.mhc.tn.gov.in/judis
                2 of Page 8
                                                                                  W.P.Nos.25684 & 25686 of 2024


                                                     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.

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

https://www.mhc.tn.gov.in/judis 3 of Page 8 W.P.Nos.25684 & 25686 of 2024

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.

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.

https://www.mhc.tn.gov.in/judis 4 of Page 8 W.P.Nos.25684 & 25686 of 2024

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 would be dated much before

the date of impugned Notification dated 20.05.2024. Specifically, in both writ

petitions, the Bill of Lading is dated 11.04.2024. 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.

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:-

https://www.mhc.tn.gov.in/judis 5 of Page 8 W.P.Nos.25684 & 25686 of 2024

(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

entirety, the goods shall be released as indicated above at the outer limit of

three (3) weeks.

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