Calcutta High Court
M/S. Karan Exports (India) Pvt. Ltd. & ... vs Union Of India & Ors on 26 April, 2010
Author: Soumitra Pal
Bench: Soumitra Pal
WP No. 436 of 2010
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
M/s. Karan Exports (India) Pvt. Ltd. & Anr.
Versus
Union of India & Ors.
Before:
The Hon'ble Justice Soumitra Pal
Date: 26th April 2010
Mr. P. K. Dutta, Advocate.
Mr. S. Banerjee, Advocate
appear for the petitioners
Mr. T. K. Hazra, Advocate
Mr. K. K. Maity, Advocate
appear for the respondents
Let the affidavit-in-opposition, the reply thereto and the
supplementary affidavit on behalf of the respondent nos. 2 to 5 filed be
kept on record.
In this writ petition the petitioner no. 1, a company under the
Companies Act, 1956, and the petitioner no. 2, one of its directors, have
prayed for a direction upon the customs authorities to act in terms of
the Order-in-Appeal No. KOL/CUS/CKP/631/2009 dated 10th
November 2009 passed by the Commissioner of Customs (Appeals).
Facts relevant for adjudication are that the petitioner had
challenged the order dated 25th April 2007 passed by the learned Customs, Excise and Services Tax Appellate Tribunal, Kolkata by filing 2 a writ petition being W.P.No. 800 of 2007, Karan Exports (India) Pvt. Ltd. versus Union of India and others (for short 'the said writ petition'). The said writ petition was disposed of on 22nd May, 2009 by passing an order, the relevant portion of which is as under:
"Having heard the learned advocates for the parties since I find that a sum of Rs.6,45,000/- is lying secured with the department, considering such fact the writ petition is disposed of by directing the Commissioner of Appeals to hear out the appeal arising out of the order in original dated 14th November, 2005 without insisting on the predeposit of Rs. 1 lakh as directed by the Tribunal by the order dated 25th April 2007 within a period of eight weeks from the date of communication of this order. The order of the learned Tribunal passed on 25th April, 2007 is modified to the extent as indicated.
It is also made clear that the petitioner shall go on renewing the bank guarantee till order is passed by the Commissioner of Customs (Appeals) and communicated to the parties."
Thereafter, pursuant to the direction, the Commissioner of Customs (Appeals) heard the appeal and disposed of the same on 10th November 2009 by passing an order, the relevant portion of which is as under:
"5. ... In that view of the matter, the impugned order is set aside and the case remanded to the lower 3 authority for decision afresh. The lower authority shall get the remnant samples tested. On receipt of the re- test report, the lower authority shall decide the case afresh. Since the matter has been pending for last so many years, the lower authority is thus directed that the re-testing of the remnant samples should be positively done within a period of three months and the de novo order, if any, should be passed within a month thereafter. Further, in terms of the Hon'ble High Court order, the bank guarantee was required to be kept alive till the decision and communication of the order by the Commissioner (Appeals). Thus, the bank guarantee is required to be returned to the appellant after the receipt of this order by the appellant.
6. The appeal is disposed of in the above terms."
Pursuant to the order passed by the Commissioner of Customs (Appeals) the petitioner by letter dated 16th November 2009 requested the customs authorities to act in terms of the said order and release the bank guarantee. Since it was not done, letters dated 18th November 2009 and 19th November 2009 followed. Thereafter, on 23rd November 2009 the Assistant Commissioner (Exports), Air Cargo Complex, N.S.C.B.I. Airport by a letter addressed to the ING Vysya Bank Limited, the respondent no. 6, requested not to initiate any action with regard to the cancellation of the bank guarantee till further communication. Since direction passed by the appellate authority was not complied with, by 4 letter dated 16th February 2010 another request was made which was followed by a reminder dated 26th February 2010. As nothing happened, letter dated 10th March 2010 demanding justice was issued. Since no action was taken, aggrieved this writ petition was filed.
The matter was initially moved on 6th April, 2010. On 12th April, 2010 directions were issued for filing of affidavits. Affidavits have been exchanged and are on record.
Learned advocate for the petitioner has submitted that though the department in its affidavit has denied and disputed that it had sat tight over the matter but it is evident that none of the letters requesting the customs authorities to comply with the directions passed by the appellate authority to retest the samples and to return the bank guarantee has been replied to. Moreover, since the revisional application under Section 129DD of the Customs Act, 1962 (for short "the Act") was filed beyond the statutory period of three months, unless the application for condonation of delay is allowed, the revisional application cannot be treated to be on record. Relying on the judgements in Prabir Chandra Ghose vs. Union of India : 1992 (62) ELT 713 (Cal.), Pankaj Guljarilal Gupta vs. Collector of Customs, Calcutta: 1995 (75)ELT 47(Cal.) and in Union of India vs. Ramlakshi Finance Corporation Ltd : 1991(55)ELT 433(SC) it has been submitted that mere filing of revisional application before the appropriate authority cannot make an order inoperative. 5 Submission is in view of the settled position of law, appropriate order may be passed directing retest of the goods and for return of the bank guarantee.
Learned advocate appearing on behalf of the department relying on the affidavit-in-opposition, has submitted that since revisional application has been filed to protect the interest of the Revenue and same is pending, no order may be passed. On a query it has been submitted that he has no information whether the application for condonation of delay has been allowed or not.
Heard the learned advocates for the parties. Admittedly, the Commissioner of Customs (Appeals), by an order dated 10th November, 2009 had directed the lower authority to get the samples tested and had directed the Department to return the bank guarantee. After order was passed, the petitioner had written letters seeking retesting of the samples and for release of the bank guarantee. However, it is unfortunate that the Customs Authorities found no time to respond. That apart, as evident from the records, on 24th March, 2010 the revisional application under section 129DD of the Act was filed by the Department admittedly beyond the statutory period which had expired on 14th February, 2010. In my view, since period of limitation had expired and the respondents had filed an application for condonation of delay before the appropriate authority, unless order is passed thereon, 6 the revisional application cannot be treated to be in order. It is well settled in view of the judgments in Prabir Chandra Ghose vs. Union of India (supra), Pankaj Guljarilal Gupta vs. Collector of Customs, Calcutta (supra) and in Union of India vs. Ramlakshi Finance Corporation (supra), that mere filing of revisional application cannot mean an automatic stay of the order passed by the authorities. Therefore, in the instant application as the respondent nos.2 to 5 had failed and neglected to give reply to the letters requesting to retest the goods and for return of the bank guarantee as directed by the Commissioner of Customs (Appeals) and as the revisional application under section 129DD of the Act filed out of time is yet to be regularised, in my view, the action of the Assistant Commissioner of Customs, (Export) Air Cargo Complex, NSCBI Airport, Kolkata, respondent no.5 in issuing the letter dated 23rd November, 2009 cannot be sustained and is, thus, set aside and quashed. Hence, the respondent nos.3 to 5 are directed to retest the goods and to return the bank guarantee to the Vice-President, Ing Vysya Bank Limited, Middleton Street Branch, Kolkata-700071, the respondent no.6 and the respondent no.6 immediately on receipt of the same from the authorities shall cancel the bank guarantee. However, I make it clear that I have not gone into the merits of the revisional application and the application for condonation of delay which shall be dealt with by the Revisional Authorities in accordance with law. 7
Since the petitioners had no opportunity to controvert the allegations contained in the supplementary affidavit filed on behalf of the respondent nos.2 to 5 in Court today, the allegations made therein are deemed not to have been admitted by them.
The writ petition is allowed.
No order as to costs.
All parties concerned are to act on a signed copy of the minutes of the operative part of this order on the usual undertakings.
(Soumitra Pal, J.) R. Bose/SS2 A.Rs.(CR)