Kerala High Court
The Proprietor vs The Commissioner Of Customs on 5 July, 2011
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 16503 of 2011(K)
1. THE PROPRIETOR,
... Petitioner
Vs
1. THE COMMISSIONER OF CUSTOMS,
... Respondent
2. THE ASSISTANT COMMISSIONER OF CUSTOMS
For Petitioner :SRI.GEORGE POONTHOTTAM
For Respondent :SRI.JOHN VARGHESE,SC,CEN.BOARD OF EXCIS
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :05/07/2011
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NO. 16503 OF 2011 (K)
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Dated this the 5th day of July, 2011
J U D G M E N T
Petitioner claims to be an importer of consumer items and a consignment of goods imported are now detained by the respondents. A detailed description of the goods is contained in Ext.P5. According to the petitioner, even in Ext.P2, allegations are only with respect to two items of such goods and therefore, at any rate rest of the items are liable to be released by the respondents. It is on this premise, the writ petition has been filed praying for a direction to the respondents to release the goods which are covered by Bill of Entry No.3302152 dated 25.04.2011.
2. Learned counsel for the petitioner relied on Section 110A of the Customs Act, 1962 and contended that, even inspite of the pendency of any proceedings, goods are liable to be released to the owner taking a bond along with such other security and subject to such conditions as are provided in the said Section.
3. On the other hand, on behalf of the respondents, it was contended that an investigation into the import and its WPC No. 16503/11 :2 : background is being conducted by the Special intelligence and Investigation Branch of the respondents. It is stated that department has obtained evidence to the effect that the Import Export Code holders in whose name the imports are effected have lent their names and Import Export Code numbers for monetary consideration and every time a consignment is imported, documents are signed by the Import Export Code holders and handed over to the racketeers and their agents. It is also stated that in respect of many of the items imported in the name of the petitioner, goods have been misdeclared. On this basis, respondents are objecting to the prayer of the petitioner.
4. Along with the counter affidavit, respondents have also filed a copy of the statement of the petitioner recorded under Section 108 of the Customs Act, which shows that the petitioner has deposed before the Customs Authorities that the value of the goods declared is less than the market value. Further, it is also seen stated by the petitioner thus:-
In this regard, I submit that I obtained my IEC in 2005. After that, I have lent my IEC to various parties for importing different items as per their requirements. The present import is done as per the request of Mr.Anvar of Metro Enterprise, Kohinoor Bldg.6/474A(1), Goods Shed Road, WPC No. 16503/11 :3 : Tirur (9961002020 Mob). I was doing imports for Sri.Anvar for the last one year. I am paid Rs.15,000 to Rs.20,000/ for clearance of one container of cargo by lending my IEC. The imports for Sri.Anvar were made from Dubai, and the goods were supplied by M/s.Asmaru Electronics LLC & Al-Sanafar Trading LLC. During the last one year I have made an import of furniture from China for a importer from North Kerala whose details are not known to me. I have also made an import in my name for an importer from Chavakkad and the item is glassware.
5. Evidently therefore, the Department has a case that the petitioner has lent the import export code number to a third party for an assured sum of money to be paid to him. It is also the case of the respondents that there is misdeclaration of value of various items imported by the petitioner. In such circumstances, I feel this Court will not be justified in interfering with the matter exercising its extra ordinary power under Article 226 of the Constitution of India. On the other hand, what is required is that the adjudication under the Customs Act should be completed on an expeditious basis.
6. In so far as Section 110A relied on by the learned counsel for the petitioner is concerned, a reading of the said section gives me the impression that the Section does not create WPC No. 16503/11 :4 : any vested right on an importer like the petitioner and that too in a case of this nature, to claim release of the goods. On the other hand, this Section only confers power on the authorities to release the goods to the importers in appropriate cases. In the facts of this case, I am not persuaded to direct release of the goods on that basis also.
Therefore, the writ petition is disposed of rejecting the prayer of the petitioner to direct release of the goods, but however it is directed that respondents shall complete their investigation and adjudication into the matter. This shall be done, with notice to the petitioner and as expeditiously as possible, at any rate within 6 weeks of production of a copy of this judgment.
ANTONY DOMINIC, JUDGE Rp