Madras High Court
M/S.Kutty Impex vs The Commissioner Of Customs – Ii on 23 March, 2022
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
W.P.Nos.1393 of 2022, etc., batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.03.2022
CORAM :
THE HONOURABLE MR. JUSTICE R.SURESH KUMAR
W.P.Nos.1393, 1396, 1398, 1403, 1404, 1414, 1421,
1424, 1427, 1429 & 1431 of 2022
and
W.M.P.Nos.1531, 1537, 1541, 1545, 1546, 1561,
1564, 1568, 1570, 1572 & 1576 of 2022
W.P.No.1393 of 2022
M/s.Kutty Impex,
No.43/83, T.T.K. Road,
Alwarpet, Chennai – 600 018.
Represented by its Proprietoress S.Mekala ...Petitioner
Vs.
1.The Commissioner of Customs – II,
No.60, Rajaji Salai,
Customs House, Chennai – 600 001.
2.The Additional Commissioner of Customs (Gr.5),
No.60, Rajaji Salai,
Customs House, Chennai – 600 001.
3.The Deputy Commissioner of Customs (Gr.5),
No.60, Rajaji Salai,
Customs House, Chennai – 600 001. ...Respondents
https://www.mhc.tn.gov.in/judis
Page 1 of 14
W.P.Nos.1393 of 2022, etc., batch
Prayer in W.P.No.1393 of 2022: Writ Petition filed under Article 226 of
the Constitution of India for issuance of a Writ of Mandamus, directing
the respondents herein to forthwith provisional release 463 units of old &
used digital multifunction print, scan & copying, machines of A3 size
vide Bill of Entry No.3193230 dated 11.05.2019 on payment of
applicable total Customs Duty on the value enhanced by the Chartered
Engineers' M/s.National Marine Consultants Inc, Chennai, vide their
Report No.NMCI/IND/C/19-20/064 dt. 23.05.2019 in line with the
directions of this Court in Nos.8574, 8576, 11151, 11157, 11165, 11371,
8575, 11049 & 11113 dated 25.01.2021.
For Petitioner : Mr.AR.L.Sundaresan
(in all WPs) Senior Counsel
for Mrs.AL.Gandhimathi
For Respondents : Mrs.R.Hemalatha
(in all WPs) Senior Standing Counsel
*****
COMMON ORDER
Since the issue raised in these writ petitions is one and the same, with the consent of Mr.AR.L.Sundaresan, learned Senior Counsel appearing for the petitioners and Mrs.R.Hemalatha, learned Senior Standing Counsel appearing for the respondents, these writ petitions were heard together and are being disposed of by this common order. https://www.mhc.tn.gov.in/judis Page 2 of 14 W.P.Nos.1393 of 2022, etc., batch
2. The petitioners have imported a machine or goods called Multi-Function Devices from foreign country sometime in the year 2019 to 2021 at various dates. The dates depends upon the bill of lading. However, according to the learned Senior Counsel appearing for the petitioners, these goods were imported prior to 18.09.2021 based on the date of lading as well as the date of bill of entry except in one or two cases.
3. The main controversy arose in this batch of cases is that, during the pendency of withholding of the goods concerned, whether these goods can be released by way of provisional release under the provisions of the Customs Act.
4. Mr. AR.L.Sundaresan, learned Senior Counsel appearing for the petitioners has in fact submitted that, the issue raised in these writ petitions, especially in the context of prayer sought for in these writ petitions are covered by the earlier decision of this Court, which has been confirmed by the Hon'ble Supreme Court.
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5. He has brought to the notice of this Court that, in fact, similar issue had come up for consideration before this Court in a batch of writ petitions in W.P.No.8574 of 2020, etc., batch in the matter of M/s. Best Mega International Vs. The Commissioner of Customs, Chennai and others, where a learned Judge of this Court by a common order dated 25.01.2021 having considered these aspects, where also similarly placed persons sought for a Mandamus for releasing of the similar goods by way of provisional release, had passed the following order :
“16. I summarise the discussion below:
i) The Hon'ble Supreme Court has consistently taken a view in favour of provisional release in such cases, noticing that in identical cases, release has been ordered and there would be no justification to take a contra view in a few cases alone.
ii) The issue on merits has been held in favour of the assesse by a Division Bench of the High Court of Telangana at Hyderabad in the case of RR Marketing (supra) and there is no stay of this order by the Supreme Court. Rather provisional release has been ordered in this case as well.
iii) The Appellate Authorities, both at the first and second levels of the hierarchy, have held the matters in favour of the assesses on merits. Some such orders https://www.mhc.tn.gov.in/judis Page 4 of 14 W.P.Nos.1393 of 2022, etc., batch have become final. The distinction as to whether the relief of release is sought by way of Mandamus or by way of interim relief in a writ of Declaration is thus, not material.
17. These Writ Petitions are allowed. The consignments in question will be released upon remittance of the enhanced duty as quantified based upon the valuation of a certified Engineer. Adjudication proceedings to be initiated/will continue to be concluded, as expeditiously as possible. No costs. Connected Miscellaneous Petitions are closed.”
6. He would also submit that, as against the said orders passed by the Writ Court, in fact intra-Court appeals have been filed in W.A.No.642 of 2021, etc., in the matter of The Commissioner of Customs, Chennai and others Vs. M/s. Best Mega International and another.
7. The Division Bench having considered the matter at length has ultimately concluded that, the order passed by the learned Judge in the Writ Court directing the Revenue to release the goods in question by way of provisional release was to be set aside, accordingly, by setting aside the order had allowed the Writ Appeals and further directed the Customs Department to consider the application filed by the respective https://www.mhc.tn.gov.in/judis Page 5 of 14 W.P.Nos.1393 of 2022, etc., batch writ petitioners therein for provisional release and pass orders on merits and in accordance with law within a time frame.
8. He would also submit that, as against the said order passed by the Division Bench, dated 04.03.2021 in Best Mega International case (cited supra), Special Leave Petitions were filed. Those Special Leave Petitions having been tagged with some similar matters in M/s. Delhi Photocopiers Vs. The Commissioner of Customs, Chennai and others were heard. The Hon'ble Supreme Court has passed the following order on 11.08.2021 :
“On 05.07.2021, this Court had issued notice in these matters. Despite the fact that the matter was pending before this Court, the Department went ahead and confiscated the goods which are the subject matter of these petitions on 17.07.2021. Mr.N.Venkataraman, learned ASG, realizing the difficulty in his way, has asked the Department to stay its hands so far as the confiscation is concerned. We see no reason to differ from a number of orders that have been passed by this Court in the past for provisional release of goods. However, it has been pointed out to us that at least on and from 01.04.2020, the goods, according to the Department, are clearly prohibited goods and on and https://www.mhc.tn.gov.in/judis Page 6 of 14 W.P.Nos.1393 of 2022, etc., batch from this date, unless an order is made under Section 125, the goods must stand confiscated.
We stay the confiscation of these goods. The Notification dated 01.04.2020 is the subject matter of controversy before this Court, particularly in view of a subsequent Notification dated 18.03.2021 that has been pointed out by Mr.Arvind Datar, learned Senior Counsel. We, therefore, allow the goods involved in these petitions, to be provisionally released on the same terms that have been indicated in all the other cases. The order dated 18.09.2020 may, in particular, be looked at for this purpose.
In view of above, the Special Leave Petitions are disposed of.
Pending interlocutory application(s), if any, is/are disposed of.”
9. Relying upon these decisions, the learned Senior Counsel would point out that, in these cases also, since the petitioners sought for a provisional release, that prayer can be allowed on same terms, which have been given by the Writ Court referred to above as has been confirmed by the Hon'ble Supreme Court in the order referred to above. https://www.mhc.tn.gov.in/judis Page 7 of 14 W.P.Nos.1393 of 2022, etc., batch
10. However, Mrs.R.Hemalatha, learned Senior Standing Counsel appearing for the respondent Revenue would point out that, as per notification dated 01.04.2020, the goods in question, which are sought to be released by way of provisional release are prohibited goods and in respect of the notification, which was recently issued on 18.03.2021 is concerned, these Multi-Function Devices, which are exactly imported by these petitioners have been brought under the category of printers, which have already been considered to be an importable goods have been given effect to only after six months from the date of notification. If that being so, since the notification was issued on 18.03.2021 it would take effect only from 18.09.2021 i.e., after six months, before which, whatever the goods imported, according to the petitioners, though can be considered as a goods can be permitted, in view of the notification dated 01.04.2020, these goods, since are prohibited goods, they are not entitled for even provisional release. Therefore, the Revenue can go ahead with the adjudication process, which may lead to the logical conclusion under the provisions of the Customs Act. Therefore, citing these reasons, the learned Senior Standing Counsel appearing for the respondents opposed the prayer sought for in these writ petitions.
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11. I have considered the said rival submissions made by the learned counsel appearing for the parties and perused the materials placed before this Court.
12. Whether a notification has been issued on 18.03.2021 under which, the goods in question, namely Multi-Function Devices are brought under the category of printers with effect from 18.09.2021, based on which, whether the petitioners are not entitled to get it released and also based on 01.04.2020 notification, whether the goods which are in question are prohibited goods or not, all these matters are pending before the law Courts.
13. In this regard, the policy decision taken by the Government i.e., the Revenue has already been put under challenge in a batch of cases before this Court, which are said to be pending.
14. Moreover, in the order dated 11.08.2021, the Hon'ble Supreme Court has taken note of these factors, where the arguments advanced on behalf of the Revenue before the Hon'ble Supreme Court was that, on and from 01.04.2020, the goods, according to the https://www.mhc.tn.gov.in/judis Page 9 of 14 W.P.Nos.1393 of 2022, etc., batch Department, are clearly prohibited goods and on and from that date, unless an order is made under Section 125 of the Customs Act, the goods stands confiscated, the Hon'ble Supreme Court had stayed the confiscation process and also has observed that, the notification dated 01.04.2020 is the subject matter of controversy before the Hon'ble Supreme Court, particularly in view of the subsequent notification dated 18.03.2021. Therefore, the goods which are in question were allowed to be released by way of provisional release on the same terms and conditions, which means, the enhanced duty has to be paid by the petitioners/importers as a condition precedent for getting release of these goods by way of provisional release.
15. Therefore, as of now, unmindful of the pendency of the litigations with regard to the applicability or otherwise of the notifications, namely notification dated 01.04.2020 or 18.03.2021, independently the prayer sought for by way of Mandamus can be considered and granted, because of the aforestated judgments, where, the learned Single Judge order dated 25.01.2021 has been confirmed by the Hon'ble Supreme Court by order dated 11.08.2021 by reversing the Division Bench order dated 04.03.2021.
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16. In that view of the matter, the arguments advanced by the learned Senior Counsel appearing for the petitioners that, the issue raised in these writ petitions especially in the context of the prayer of Mandamus sought for herein is covered by the said decision of the Court of Law including the decision of the Hon'ble Supreme Court dated 11.08.2021 is to be accepted.
17. In that view of the matter, these writ petitions are disposed of with the following orders :
(i) That there shall be a direction to the respondents to consider the plea of the petitioners to release the goods by way of provisional release on condition that, the petitioner shall pay/deposit the enhanced duty amount. On receipt of such enhanced duty amount paid by the petitioners, the goods in question shall be released within a period of three weeks thereafter.
(ii) For payment of such duty, quantification shall be made by the Customs forthwith within one week from the date of receipt of a copy of this order. On receipt of such quantification, the payment shall be immediately made by the petitioners and on receipt of the payment in entirety, the goods shall be https://www.mhc.tn.gov.in/judis Page 11 of 14 W.P.Nos.1393 of 2022, etc., batch released as indicated above at the outer limit of three weeks.
(iii) It is made clear that, this order will not stand in the way for Customs Department to go ahead with the further proceedings including the adjudication in the manner known to law.
(iv) It is further made clear that, in the earlier interim order passed in a related writ petitions by an another Division Bench of this Court, that demurrage charges till date for the goods was directed to be considered for waiver. In this regard, if any application is filed by the petitioners seeking such a waiver of demurrage charges, the same shall be considered and decided by the respondents objectively.
18. With these observations and directions, all the Writ Petitions are ordered accordingly. No costs. Consequently, connected miscellaneous petitions are closed.
23.03.2022 Index : Yes / No Speaking order / Non Speaking order sp/sgl https://www.mhc.tn.gov.in/judis Page 12 of 14 W.P.Nos.1393 of 2022, etc., batch To
1.The Commissioner of Customs – II, No.60, Rajaji Salai, Customs House, Chennai – 600 001.
2.The Additional Commissioner of Customs (Gr.5), No.60, Rajaji Salai, Customs House, Chennai – 600 001.
3.The Deputy Commissioner of Customs (Gr.5), No.60, Rajaji Salai, Customs House, Chennai – 600 001.
https://www.mhc.tn.gov.in/judis Page 13 of 14 W.P.Nos.1393 of 2022, etc., batch R.SURESH KUMAR, J.
sp/sgl W.P.Nos.1393, 1396, 1398, 1403, 1404, 1414, 1421,1424, 1427, 1429 & 1431 of 2022 23.03.2022 https://www.mhc.tn.gov.in/judis Page 14 of 14