Calcutta High Court
M/S.Aman Exports And Ors vs The Commissioner Of Customs (Port) And ... on 8 December, 2017
Author: Aniruddha Bose
Bench: Aniruddha Bose, Arindam Sinha
ORDER SHEET
GA NO.3655 OF 2017
WITH
APOT NO.218 OF 2017
IN THE HIGH COURT AT CALCUTTA
SPECIAL JURISDICTION(INCOME-TAX)
ORIGINAL SIDE
M/S.AMAN EXPORTS AND ORS.
Versus
THE COMMISSIONER OF CUSTOMS (PORT) AND ANR.
BEFORE:
The Hon'ble JUSTICE ANIRUDDHA BOSE
The Hon'ble JUSTICE ARINDAM SINHA
Date : 8th December, 2017.
MR.J.P.KHAITAN,SR.ADVOCATE, MR.JOYDIP KAR, SR.ADVOCAT, MR.S.M.AKHTAR, ADVOCATE FOR
APPELLANTS
MR.SOMNATH GANGULI, MS.MANASI MUKHERJEE, ADVOCATE FOR RESPONDENT NO.1
MR.KAUSHIK DEY, ADVOCATE FOR RESPONDENT NO.2 The Court :-The appellant/writ petitioner is aggrieved by order dated 15th November, 2017 by which the writ petition was dismissed.
Mr. Khaitan, learned senior Advocate appearing on behalf of the applicant submits, the goods are imported consignments lying in containers at the Port. The authorities are obstructing de-stuffing of the containers and as such, huge demurrage charges are being incurred. He submits, application was made on behalf of the owner for provisional release of the goods. There cannot be any dispute regarding ownership since the bills of lading are in the name of Aman Exports, a partnership firm which is the owner of the imported consignments. Copies of one of 2 the bills of lading appear at page 75 of the stay petition and the other original bill is handed up by him on the submission that the authorities have a copy thereof. The original is returned to Mr. Khaitan.
He also refers to section 49 of the Customs Act, 1962, which provides for storage of imported goods in warehouse pending clearance. He submits, situation created by the authorities calls for invocation of clause (a) in that section and there should be an order for warehousing of the goods pending clearance on completion of investigation. He hands up copy of letter dated 4th December, 2017 addressed to his clients by which the respondent no.1 rejected the previous application for provisional release of the goods on the ground that the importer firm was a "shell company". Obtaining leave he files supplementary affidavit disclosing copy of representation dated 29th November, 2017 addressed to the Commissioner of Customs(Port) signed by a partner of the appellant/writ petitioner. He also refers to Central Board of Excise and Customs Circular no.35/2017-Customs dated 16th August, 2017 to submit that the authorities have not disclosed any reason contemplated therein to obstruct provisional release of the goods.
Mr. Ganguli, learned Advocate appears on behalf of the respondent no.1, the Commissioner of Customs. He submits, the goods are in his client's custody. Investigation is on going as conducted by the respondent no.2.
3
Mr. Dey, learned Advocate appears on behalf of the respondent no.2, Directorate of Revenue Intelligence (DRI). He reiterates his submissions, recorded in the impugned order, on the basis of which the writ petition was dismissed. The submissions are as under :-
"It is argued that the detention of the goods is still under investigation and the investigation is not being attended by the real owners but, through their so-called authorised representative. It is further argued that the provisional release, as contemplated under Section 110A of the 1962 Act, only permits the owner to apply before the Adjudicatory Authority (AA)."
Now that representation has been made by a partner of the firm who had imported the goods, the respondent no.1 is to consider and dispose of the same within ten days from date. For the purpose of dealing with the representation the said respondent will call for hearing of the person making the representation as well as DRI. In dealing with the representation the said respondent, if is to exercise discretion to deny provisional release of the goods, must take care to give reasons within the scope of the observations of the Madras High Court as mentioned in paragraph 3 of the said circular. The appellant/petitioner will be at liberty, in that event, to urge for warehousing of the goods under section 49(a).
4
Mr. Dey submits that there be a direction upon the appellant/writ petitioner to co-operate in the investigation. Mr. Khaitan assures this Court that his clients will co-operate in the investigation and present themselves as and when summoned.
We have dealt with the stay application and there is no necessity to keep the appeal pending. On behalf of the respondents service of notice of appeal is waived. All other appeal formalities are dispensed with. Accordingly, the application and appeal are both disposed of.
(ANIRUDDHA BOSE, J.) (ARINDAM SINHA, J.) nm