Bombay High Court
K. B. International Thr. Its Proprietor vs The Commissioner Of Customs ( Import ) ... on 5 January, 2024
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2024:BHC-AS:605-DB
Ashvini Narwade 505-wp-229-2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.229 OF 2024
K. B. International ... Petitioner
Versus
The Commissioner of Customs (Import) ...Respondents
Group-I, Jawaharlal Nehru Customs House & Ors.
Mr. Anand S. Patil for the Petitioner.
Mr.Jitendra B. Mishra a/w. Mr. Dhananjay b. Deshmukh for the
Respondents.
_______________________
CORAM: G. S. KULKARNI &
FIRDOSH P. POONIWALLA, JJ.
DATED: 5 January, 2024
_______________________
P.C.:
1. Not on board, taken on production board.
2. We have heard Mr. Patil, learned counsel for the petitioner and
Mr. Mishra, learned counsel for the respondents.
3. This petition under Article 226 of the Constitution of India is
ASHVINI
BAPPASAHEB
KAKDE filed praying for the following reliefs :
Digitally signed by
ASHVINI
BAPPASAHEB
KAKDE
Date: 2024.01.08
a) Be issue Rule,
12:37:59 +0530
b) This Hon'ble Court may be pleased to call for the
relevant record on the file of Respondent No. 1 & 3 & may
further be pleased to issue a Writ of Mandamus or any
other appropriate writ or order or directions, directing the
Respondents & more particularly to the Respondent No.1
& 3 to grant Release of the goods covered by Exh-A, Bill of
Entry No. 8876300 dated 22/11/2023 & Bill of Entry No.
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8940516 dated 25/11/2023 for the home consumption on
such terms and conditions as this Hon'ble Court may deem
fit & proper.
c)this Hon'ble Court may direct the Respondents to
Release the goods covered by Exh-A, Bill of Entry
No.8876300 dated 22/11/2023 & Bill of Entry
No.8940516 dated 25/11/2023 on reasonable bond.
d) Pending the hearing & final disposal of the present Writ
Petition, this Hon'ble Court may direct the Respondent
No. 1 & 3 to Provisional Release of the goods covered by
Exh-A, Bill of Entry No. 8876300 dated 22 / 11/2023 &
Bill of Entry No. 8940516 dated 25/11/2023.
e) Interim, Ad-interim relief may be granted as per prayer
clause (d);
f) Cost of this Petition be provided for;
g) Pass such further Order and other relief as the nature and
circumstances of the case may require.
4. Mr. Patil, learned counsel for the petitioner, would submit that
the consignment of apples, which is the subject matter of the present
petition, is not being cleared by the respondent customs on the ground
that the same is hit by the Notification No.5/2023. It is contended that
such notification is sought to be foisted by the department on the
Petitioner when the same is neither attracted nor applicable. He submits
that in regard to similar imports, the proceedings were considered by this
Court initially in the case of M/s. Indusina Exmi LLP vs Union of India &
Anr.1, and subsequently in the case of Jumbo Dates vs. The Commissioner
of Customs (Import)2, wherein in this Court, considering the orders
passed by the Kerala High Court in the case of Indusina Exmi LLP vs.
1 WP/22281/2023 dtd. 11.07.2023.
2 WP/16014/2023 dtd. 21.12.2023.
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The Commissioner of Customs (Imports) & Ors. 3 as also the orders
passed by the Division Bench of Madras High Court in the case of the
Additional Commissioner of Customs vs M/s. N. C. Alexander 4 was
pleased to order provisional release of the imports of apples being not
affected by Notification No.5 of 2023.
5. As rightly pointed by Mr. Patil, we have considered a similar
challenge in Jumbo Dates (supra). We note our order dated 21st
December 2023 which reads thus:
"1. We have heard Mr. Patil, learned counsel for the petitioner and
Mr. Mishra, learned counsel for the respondents.
2. The present proceedings concern the import of apples under the
subject Bill of Entry. The prayers as made in the present petition is in
regard to the provisional release of the consignment of apples imported by
the petitioner, which have been detained and not released by the
respondents, on the ground that Notification No. 5/2023 has been issued,
which caps the minimum price of apples for import at Rs.50/- per kg.
3. The contention as urged by the petitioner is that the import in
question and subject matter of the present proceedings is exactly at Rs.
50/- per kg. and hence the said notification, which is sought to be foisted
on the petitioner, is not applicable.
4. Learned counsel for the petitioner would also submit that similar
issue had arisen before the Kerala High Court in M/s. Indusina Exim LLP
vs. Union of India & Anr. 5, who had also imported apples and had
challenged the said notification. The Kerala High Court by an order dated
11 July, 2023 had stayed the said notification and, accordingly, permitted
provisional release of apples as imported by M/s. Indusina Exim LLP
(supra).
5. Learned counsel for the petitioner would thus submit that apart
from the petitioner being not affected by the said notification, the petition
would also stand covered by such order passed by the Kerala High Court
3 WP/15414/2023 dtd. 8.12.2023.
4 W.A. No.2626 of 2023 dtd. 18.10.2023
5 Writ Petition No. 22281 of 2023 dated 11 July, 2023
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in M/s. Indusina Exim LLP (supra) and hence, it would be an entitlement
of the petitioner to seek provisional release of apples.
6. Learned counsel for the petitioner has also drawn our attention to
an order dated 8 December, 2023 passed by this Court in the case of M/s.
Indusina Exim LLP vs. The Commissioner of Customs (Imports) & Ors. 6
in which this Court, considering the order passed by Kerala High Court,
had permitted provisional release of the goods in the following terms:
"5. We have heard learned counsel for the
petitioner and the respondents.
6. In our view, the petitioner is entitled to
provisional release of goods as prayed for, for more than
one reason. Notification No. 5/2023 which imposes
minimum price of Rs.50/- per kg. for import of apples
has been stayed by the Kerala High Court. Secondly,
only issue is with respect of valuation and goods being
perishable in nature and further the petitioner is willing
to comply with the terms and conditions to be put forth
by respondent no. 2 for provisional assessment of goods
there does not seem to be justifiable release to detain
the goods. In the light of these facts, it would be in the
interest of justice that the petition be allowed in terms
of prayer clause (1).
7. We, therefore, direct Respondent to
provisionally assess the Bill of Entry No. 8733339
within a period of four days from today and release the
goods on the petitioner furnishing the bond."
7. We may also observe that the revenue had filed a Review Petition
No. 107 of 2023 praying for review of the aforesaid order dated 8
December, 2023, which came to be rejected by a detailed order dated 14
December, 2023 passed by this Court.
8. Mr. Mishra, learned counsel for the respondent has opposed this
petition on the ground that the petitioner has waived a show cause notice
and in fact an order is recently passed whereby the goods have been
confiscated. It is stated to be dated 18 December, 2023. However, the
petitioner has not been served with a copy of the order. It is stated that an
email was forwarded to the petitioner enclosing such order as also by a
speed post. However, such order is not placed before us. Such order, in
our opinion, however, would not make any difference considering the
view we are required to take on the proceedings.
9. Be so it, in our opinion, there is much substance in the
contentions as urged on behalf of the petitioner. We have seen from the
6 Writ Petition No. 15414 of 2023
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documents as annexed in the petition, which are Bill of Entry and
Invoices, that the price at which the petitioner has imported the apples in
qestion is at Rs.50/- and the embargo to any clearance of such import
under Notification No. 5/2023, which would operate if the value is below
Rs.50/- per kg. Thus, it would not be correct on the part of the revenue
only on the ground of the notification in regard to fixing of the import
price, the present consignment of the apples, as imported by the petitioner
should be labelled as prohibited goods.
10. We may also observe that not only this Court in the case of M/s.
Indusina Exim LLP vs. The Commissioner of Customs (Import) but also
the Kerala High Court as well as the Madras High Court have taken a
consistent view in regard to permitting clearance of the apples on the
ground that Notification No. 5/2023 has been stayed. We have not been
pointed out any judgment which takes a contrary view in regard to the
notification in question. We have also not been pointed out that the stay
of the said Notification as ordered by the Kerala High Court has stood
vacated. The order passed by the Kerala High Court on the said
notification, would apply in respect of imports of apples by traders
throughout the country considering the settled principles of law as laid
down by the Supreme Court in M/s. Kusum Ingots and Alloys Ltd. vs.
Union of India & Anr.7.
11. In the aforesaid circumstances, considering that the imports are
perishable in nature, we are inclined to allow this petition in terms of the
following order:
ORDER
(i) We direct that the imports of the petitioner subject matter of Bill of Entry No. 8854586 dated 20 November, 2023, be released on the petitioner furnishing a bond.
(ii) An appropriate assessment of the bill of entry be accordingly undertaken in accordance with law within a period of three days from today.
12. Disposed of in the above terms. No costs."
6. In the present case, the Bills of Entry seeks to clear the imports of apples which are imported by the petitioner at a price which is at Rs.50/- per kg. Thus clearly the price per kilogram being Rs.50/-, which is not below the price fixed by Notification No.5 of 2023, it would be 7 (2004) 6 SCC 254 Page 5 of 6 5 January, 2024 ::: Uploaded on - 08/01/2024 ::: Downloaded on - 28/01/2024 22:25:25 ::: Ashvini Narwade 505-wp-229-2024.doc correct for the petitioner to contend that the respondents cannot detain the petitioner's consignment on the basis of the minimum price as fixed by the said notification. We are accordingly of the opinion that there is no reason as to why the petitioner ought not to be permitted to clear the goods. We accordingly dispose of this petition by following order :
(i) We direct that the imports of the petitioner, which are the subject matter of Bill of Entry No.8876300 dated 22/11/2023 and Bill of Entry No.8940516 dated 25/11/2023 be not detained on the ground that these goods are prohibited goods under Notification No.5/2023, and, on such count, be released on the petitioner furnishing a bond.
(ii) An appropriate assessment of the bills of entry be accordingly undertaken, in accordance with law, within a period of 3 days from today.
(iii) It is clarified that, except for what has been observed above, we have not examined any other issue.
7. Disposed of in the above terms. No costs. (FIRDOSH P. POONIWALLA, J.) (G. S. KULKARNI, J.) Page 6 of 6 5 January, 2024 ::: Uploaded on - 08/01/2024 ::: Downloaded on - 28/01/2024 22:25:25 :::