Gujarat High Court
Rodex International vs Union Of India & 2 on 20 March, 2014
Bench: Akil Kureshi, Sonia Gokani
C/SCA/955/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No. 955 of 2014
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RODEX INTERNATIONAL....Petitioner(s)
Versus
UNION OF INDIA & 2....Respondent(s)
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Appearance:
Mr. DEVEN V PARIKH Sr Advocate for Mr RA SHAH, ADVOCATE for the Petitioner
MR RITURAJ M MEENA, ADVOCATE for the Respondent(s) No. 1
MR RJ OZA, ADVOCATE for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 3
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CORAM: HONOURABLE Mr. JUSTICE AKIL KURESHI
and
HONOURABLE Ms. JUSTICE SONIA GOKANI
20th March 2014
ORAL ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
Petitioner has prayed for a direction to the respondents to release four refrigerators and 28580 memory cards seized by the Department on such terms and conditions, as found just and proper.
Briefly stated, the facts are that the Department intercepted a consignment of refrigerators imported from Singapore at Kandla Port in February 2011. It was found that in four of the refrigerators, the said memory cards were concealed, which was not declared in the documents filed by the importer. On such basis, Department seized the entire consignment. The Page 1 of 8 C/SCA/955/2014 ORDER petitioner approached the Court by filing Special Civil Application No. 10079 of 2011 and prayed for release of the goods. Petition was disposed of by an order dated 9th September 2011. Directions were in two parts. For the goods other than four refrigerators and the memory cards, directions were given for provisional release of the goods on certain terms. For the remaining items, the Court passed the following order.
"(iii) For further remaining items namely the four refrigerators and the memory cards, it would be open for the petitioner to press for application under Section 110A of the Act, which is stated to have been filed and if not so filed so far, it would be open for the petitioner to make such an application.
If such an application is already made or may be made within two weeks from today, the authorities shall take a final decision thereon expeditiously."
It is not in dispute that though somewhat belatedly, the respondent did release the goods provisionally as per the Court's order. The dispute in the present petition relates to the four refrigerators and 28580 memory cards. It is the case of the petitioner that promptly after the said order was passed by the High Court, the petitioner filed an application dated 21st September 2011 in terms of the said order and requested that in exercise of the powers under Section 110A of the Customs Act, such goods be released on reasonable conditions. The case of the Department is that the said application was never Page 2 of 8 C/SCA/955/2014 ORDER received. We notice that there were further letters written by the petitioner on 2nd September 2011; 10th November 2011 and 22nd February 2012 all relating to the release of the refrigerators, as per the provisional release order passed by the High Court. In none of these letters, the petition refers to the order that the Commissioner may pass under Section 110A of the Customs Act, as per the directions of the Court.
The petitioner has produced at page 95, a letter dated 28th March 2012 written by his lawyer to the Department seeking release of the said goods. In such letter, there is no reference to the letter dated 22 nd September 2011. The Department contends that even this letter was not received.
Be that as it may, the Department did receive a further letter 18th April 2012 in which there was a reference to the lawyer's letter dated 28th March 2012. In this letter also, the petitioner made no mention of the first letter dated 21st September 2011. In this letter, the petitioner requested for release of the memory cards in terms of the order of the High Court.
The Department did not decide these applications. Instead, conveyed under a communication at page 100A [the precise date of which is not clear] that the petitioner's original application dated 21st September 2011 was not received. The petitioner may, therefore, make a fresh application alongwith a copy of the earlier application. There is further correspondence, which need not interest us. Page 3 of 8 C/SCA/955/2014 ORDER In the meantime, Department issued a show cause notice and began hearing of the adjudication proceedings. After an adjournment, the Superintendent wrote a letter dated 23rd May 2012 informing the petitioner that one personal hearing has already been given and the second personal hearing is fixed on 28 th May 2012. The petitioner may, therefore, cooperate in the adjudication so that the matter can be finalized. The grievance of the petitioner is that the Commissioner passed his final order dated 25th July 2012 whereby not only he confiscated the goods and imposed penalties, levied fine of Rs. 20 lacs, in lieu of confiscation. This order of the Commissioner is already in challenge before the Tribunal. In the appellate proceedings, the petitioner requested the Tribunal that the goods still remaining with the Department be released on softer conditions. The petitioner indicated dispensation of entire fine in lieu of confiscation, as it would be harsh and not workable. The Tribunal, however, did not grant the prayer observing that now that the adjudication order is passed, the petitioner's prayer cannot be granted. Under such circumstances, the petitioner has approached this Court and made above mentioned prayers.
Learned counsel Shri Parikh vehemently contended that the Commissioner did not carry out the directions of this Court. The Commissioner ought to have decided the application for provisional release made under Section 110A of the Customs Act. The Commissioner ought not to Page 4 of 8 C/SCA/955/2014 ORDER have passed final order of adjudication without deciding such application particularly when the Court had directed early disposal of such application. He submitted that the Tribunal has ample power to pass such interim order as is found necessary to secure the ends of justice. He submitted that no releasing the goods would be detrimental to the petitioner's interest. The value of the goods would fast deteriorate, considering the fact that the goods in question are electronic goods.
On the other hand, learned counsel Shri Oza for the Department opposed the petition contending that the first application dated 21 st September 2011 of the petitioner was never received. His first approach to the Department in this respect therefore was in April 2012. The Commissioner, in the meantime, had initiated show cause notice proceedings and completed the same without any delay.
Having thus heard learned counsel for the parties and having perused the material on record, we may recall that the Court in the order dated 9th September 2011 with respect to the goods in question had not passed any specific order of releasing the same provisionally. The Court had only provided that it would be open for the petitioner to press for application under Section 110A of the Act, which was stated to have been filed. It was provided that if no such application was filed, it would be open for the petitioner to do so, and if Page 5 of 8 C/SCA/955/2014 ORDER such an application is already made, or may be made within two weeks, the authorities shall take a final decision thereon expeditiously. Under the circumstances, it cannot be said that the Commission flouted the Court's order. Had the directions of the Court being to release the goods on certain conditions or otherwise, the petitioner would have been justified in raising the grievance that the Commissioner ought not to have passed the final order of adjudication without releasing the goods. The Court only required the Commissioner to decide an application for provisional release of the goods. When the Court passed such an order, it was not clear whether such an application was already filed. It was, therefore, that the Court provided that if such an application is already filed or if not filed, the same may be filed within two weeks and that the Commissioner shall decide the same expeditiously.
There is some ambiguity about application dated 21st September 2011 of the petitioner having been received by the Department. The petitioner firmly contends that the same was received by the Inward Clerk on 13th September 2011 for which a stamp is affixed. Counsel for the petitioner showed us the office copy of such an application on which such a stamp is affixed. We need not dispute this stand of the petitioner. Nevertheless, in a writ petition, it would not be possible for us to conclude in a document shown across the table Page 6 of 8 C/SCA/955/2014 ORDER that the application was actually made and inwarded. We, however, cannot close the issue in this manner. If the application was actually made and in warded, it is a matter of serious concern why the same did not reach the Commissioner and it is disowned in the affidavitinreply. We would, therefore, require the Commissioner to hold an inquiry in this respect and if found that the letter was actually received by the Department but not placed before him, to take necessary steps departmentally as found appropriate. This is also to ensure that in future, such cases do not reoccur.
In so far as the present case is concerned, however, the first approach by the petitioner after initial letter dated 21st September 2011 was a letter dated 18th April 2012. In such a letter, as mentioned above, he made no reference to his previous letter of 21st September 2011. Even thereafter, he did not supply a copy of his first letter dated 21st September 2011.
When all this was going on, hearing of the show cause notice proceedings had also commenced. After first adjournment sought by the petitioner, the Department conveyed that the petitioner may cooperate to bring an early end to the proceedings. Ultimately, the Commissioner passed his orderinoriginal.
When the orderinoriginal was passed, certain confiscation is ordered. Fine in lieu of confiscation is provided alongwith duty and interest. We do not Page 7 of 8 C/SCA/955/2014 ORDER see any reason to stay such an order as to release the goods without fulfilling the said conditions The order of the Commissioner is in challenge before the Tribunal. We, therefore, do not express any opinion on the merits or demerits of the final directions. Suffice it to say that at this stage, the question of provisional release of the goods ignoring the final conclusion of the Commissioner in his orderinoriginal, in the facts of the case, are not warranted.
The Tribunal is, however, requested to grant expeditious hearing of the appeal and an attempt may be made to dispose of the same as early as possible.
With these observations, petition is disposed of.
{Akil Kureshi, J.} {Ms. Sonia Gokani, J.} Prakash* Page 8 of 8