Calcutta High Court (Appellete Side)
M/S. Balaji Multiplex Private Limited & ... vs Union Of India & Ors on 9 October, 2013
Author: Harish Tandon
Bench: Harish Tandon
1
21 09.10.13 W.P. 29138 (W) of 2013
akd
M/s. Balaji Multiplex Private Limited & Anr.
Vs.
Union of India & Ors.
--------
Mr. Kishore Dutta, Mr. Shakeel Mohammed Akhter.
... for the petitioner.
Mr. Somenath Bose, Mr. Utpal Maitra.
... For the Union of India.
Mr. Rajarshi Bharadwaj, Mr. Subir Kumar Saha.
... for the Customs Authority.
Re : CAN 10536 of 2013 Initially the petitioner challenged the notification dated 13th May, 2013 issued by the Director General of Foreign Trade (in short "DGFT") by imposing certain conditions relating to the policy of importation of Areca Nuts by providing the CIF value at Rs. 110/- per Kg. and above, but by way of supplementary affidavit the petitioner further challenges the circular dated 23rd September, 2013 issued by the Deputy Commissioner of Customs (Import) relating to the provisional assessment at a tariff value shown in the notification dated 13th May, 2013 together with the furnishing of Bank Guarantee to the extent of 40% of the total due of the P.D. Bond for cent per cent value of the goods.
Let the supplementary affidavit filed today be kept with the record.
According to the petitioner, such condition, which is imposed by the said circular dated 23rd September, 2013 is contrary to Sections 14, 15 and 2 18 of the Customs Act, 1962. It is further submitted that when the authorities are making the provisional assessment on the basis of the said circular, there cannot be any further condition for furnishing Bank Guarantee as well as P.D. Bond.
The respondents, however, say that the moment goods are imported in violation of the policy conditions, it partakes a character of prohibited goods under Section 2(33) of the said Act, which is liable to be confiscated under Section 111 of the said Act and the authorities are empowered to impose the penalty upon invocation of the provisions contained under Section 112 of the said Act.
The petitioner in turn says that the definition of 'prohibited goods' as enshrined under Section 2(33) of the said Act does not include the goods, which are otherwise importable with conditions and the import of the Betel Nut (Areca Nuts) is otherwise free in a policy of the Central Government with certain conditions, does not come within the ambit of 'prohibited goods', so as to attract the other provisions like under Section 111, 112 or 125 of the said Act.
The DGFT circular indicating the policy of the Central Government dated 13th May, 2013 reveals that the import of the said Betel Nuts (Areca Nuts) is free with conditions that the CIF value is Rs.110/- per Kg. and above. By a subsequent circular issued by the Customs Authority the tariff value was fixed at 1870 Dollar per Metric Ton.
The point whether the goods imported without indicating the CIF value at Rs. 110/- per Kg. and 3 above would come within the definition of 'prohibited goods' or not requires to be considered finally in this writ petition.
Till the final decision is taken, this Court feels that there is no impediment on the part of the Customs Authority in making a provisional assessment under Section 18 of the said Act. The invocation of the provisions contained under Section 111 or 112 or 125 of the said Act would only come when the goods comes within the strict definition of 'prohibited goods' embodied under Section 2(33) of the said Act.
This Court, therefore, feels that there is no justification in imposing the conditions as envisaged under Sections 111, 112 and 125 of the said Act by way of furnishing Bank Guarantee as well as P.D. Bond in the subsequent circular dated 23rd September, 2013.
By way of an interim order, this Court directs the Customs Authority to make a provisional assessment under Sections 14, 15 and 18 of the said Act without imposing any conditions for furnishing Bank Guarantee as well as P. D. Bond, which is one of the requirements under Section 111, 112 and 125 of the said Act.
Let affidavit-in-opposition to the instant application as also the writ petition be filed within two weeks after reopening of this Court following Puja Vacation. Reply thereto, if any, be filed within one week thereafter.
4Let the matter be listed three weeks after reopening of this Court following Puja Vacation in the supplementary list under the heading "Motion".
(HARISH TANDON, J.)