Kerala High Court
M/S.Parag Domestic Appliances vs The Commissioner Of Customs on 31 May, 2017
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
MONDAY, THE 5TH DAY OF JUNE 2017/15TH JYAISHTA, 1939
WP(C).No. 8364 of 2017 (U)
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PETITIONER(S):
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M/S.PARAG DOMESTIC APPLIANCES
R/O 5 TOWN SHEND ROAD KOLKATA - 700 025,
USHMA BOGHANI,
W/O. SRI.PARAG BOGHANI PROPRIETRESS,
REPRESENTED BY HER POWER OF ATTORNEY HOLDER
PARAG BOGHANI, R.O.5 TOWN SHEND ROAD,
KOLKATA - 700 025.
BY ADV. SRI.P.A.AUGUSTIAN
RESPONDENT(S):
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1. THE COMMISSIONER OF CUSTOMS
CUSTOMS HOUSE, WILLINGTON ISLAND,
COCHIN - 682 009.
*ADDITIONAL R2 & R3 IMPLEADED
2. ERNAKULAM HEAD LOAD WORKERS UNION (CITU)
POONITHURA POOL NO.37,
REPRESENTED BY GENERAL SECRETARY,
SHAMEER V.A., AGED 43 YEARS, S/O.ABDUL KHADER.
3. KERALA STATE WAREHOUSING CORPORATION,
ERNAKULAM, KOCHI - 16.,
REPRESENTED BY ITS MANAGING DIRECTOR.
*ADDITIONAL R2 & R3 ARE IMPLEADED VIDE ORDER DATED 31.05.2017 IN
I.A.NO.7933 & 8054/17 RESPECTIVELY
R1 BY SREELAL N. WARRIER, SC
R2 BY ADV. SRI.P.M.POULOSE
R3 BY ADV. SRI.MAJNU KOMATH, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 05-06-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
SKG
WP(C).No. 8364 of 2017 (U)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1 TRUE COPY OF THE JUDGMENT DATED 23.1.2017 IN
WRIT PETITION NO. 1354/2017.
P2 TRUE COPY OF THE JUDGMENT DATED 10.2.2017 IN WA
NO. 285/2017.
P3 TRUE COPY OF THE LETTER DATED 10.2.2017.
P4 TRUE COPY OF THE LETTER DATED 23.2.2017.
P5 TRUE COPY OF THE LETTER DATED 27.2.2017.
P6 TRUE COPY OF THE ORDER-IN-ORIGIN NO. COC-CUSTM-
000-COM-56/16-17 DATED 28.2.2017.
RESPONDENT(S)' EXHIBITS
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A.K.JAYASANKARAN NAMBIAR, J.
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W.P.(C) No.8364 of 2017(U)
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Dated this the 5th day of June, 2017
JUDGMENT
The petitioner in the writ petition is an importer engaged in the import of used Digital Multifunction Machines and their accessories, through various ports in India, including the Cochin Port. In the writ petition, the petitioner is aggrieved by Ext.P6 order of the Commissioner of Customs, which directs a confiscation of the old and used Digital Multifunction Printers/Devices imported by the petitioner under cover of 24 Bills of Entry, and permits the redemption of the same, solely for the purposes of re-export and on payment of a fine of Rs.1,00,00,000/- under Section 125 of Customs Act, 1962. In the order, it is made clear that if the petitioner does not avail the option to redeem the goods for purposes of re-export, the goods will be destroyed as per the guidelines issued by the Kerala State Pollution Control Board in the presence of the officers of the Customs Authorities as also the Pollution Control Board. The said order also imposes separate penalties on the importer as also the various partners of the partnership in question. In the writ petition, the challenge against Ext order is primarily on the ground of alleged violation of the rules of natural justice. It is the case of the petitioner that, on an earlier occasion, and prior to the adjudication of the issue by the customs W.P.(c).No.8364 of 2017 : 2 : authority, they had approached this Court through W.P.(C). No.213/2017, and this Court had by Ext.P4 judgment, refused to permit the clearance of the goods, as sought for by the petitioner, and directed the customs authority to complete the adjudication process expeditiously. Aggrieved by Ext.P4 judgment of the Single Judge, the petitioner approached the Division Bench through W.A.No.286/2017, and the Division Bench which considered the appeal, by Ext.P5 judgment, took note of the plea of the petitioner that it was ready to waive the issuance of a show cause notice, and directed the petitioner to appear for a hearing before the respondents on 5.02.2017. But for the said modification, the directions of the Single Judge as regards the adjudication of the matter was confirmed by the Division Bench in the Writ Appeal. It would appear that, pursuant to the directions in Ext.P5 judgment of the Division Bench, the petitioner appeared before the Commissioner of Customs for a hearing on 15.02.2017. On that date, however, they were served with a show cause notice calling upon them to submit a reply, within a period of ten days. While the petitioner initially refused to accept the show cause notice, and approached this Court seeking a review of Ext.P5 judgment in the wake of subsequent developments, the said review petition was subsequently withdrawn. The petitioner, thereafter, accepted the show cause notice, and also filed a reply to the show cause notice, W.P.(c).No.8364 of 2017 : 3 : within the time granted therein. The reply filed was over and in addition to the detailed statement that they had already filed on 15.02.2017, on which date they had appeared before the Commissioner of Customs. The adjudication proceedings, thereafter, culminated in Ext.P6 order, which is impugned in the writ petition. The grievance of the petitioner in this writ petition is that, while passing Ext.P6 order, the Commissioner of Customs did not grant them a further opportunity of hearing, after the date fixed for furnishing the reply to the show cause notice. It is under these circumstances, that they impugn the said order, on the ground of alleged violation of the rules of natural justice.
2. I have heard Sri.Joseph Kodianthara, the learned Senior Counsel, duly assisted by Sri. P.A.Augustine, for the petitioner, and Sri. Sreelal N Warrier, the learned Standing Counsel for the respondents.
3. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find from Ext.P5 judgment of the Division Bench of this Court that the petitioner had waived the requirement of a show cause notice, so as to ensure an expeditious adjudication of the matter by the Commissioner of Customs. It would W.P.(c).No.8364 of 2017 : 4 : appear, however, that even after the petitioner waived the issuance of a show cause notice, when he appeared before the Commissioner of Customs on 15.02.2017, the Commissioner served a show cause notice on the petitioner outlining the proposals of the Department. Although, initially, the petitioner refused to accept the show cause notice, it was subsequently accepted and a reply to the said show cause notice was also furnished by the petitioner, over and above the detailed statement that he had already submitted at the time of personal hearing on 15.02.2017. The only issue that comes up for consideration before me today is, as to whether the non-extension of a further opportunity of hearing to the petitioner, after the time prescribed in the show cause notice for submitting the reply, would vitiate Ext.P6 order, on the ground of violation of the rules of natural justice. In this connection, I find that, it was the petitioner who sought for a waiver of the show cause notice, thereby leaving the issue to be decided by the Commissioner of Customs on any legal grounds available, including grounds that were not specifically enumerated in the show cause notice that was subsequently served on the petitioner. Under such circumstances, the petitioner cannot be heard to contend that the department had confirmed the demand against it, or found against it on grounds which were not specifically put to them, through a show cause notice. I also find that, the mere W.P.(c).No.8364 of 2017 : 5 : fact that a show cause notice was subsequently issued to the petitioner did not, as indeed it could not, work to the prejudice of the petitioner, because the show cause notice only limited the grounds on which the adjudicating authority could confirm the proposals against the petitioner. In other words, the show cause notice limited the powers of the adjudicating authority and did not affect any of the rights of the petitioner. For the same reason, the mere non-extension of a subsequent hearing, prior to the passing of Ext.P6 order, cannot be said to have worked to the prejudice of the petitioner. I, therefore, find that the challenge in the writ petition against Ext.P6 order cannot be legally sustained, and the petitioner ought to be relegated to his alternate remedy of approaching the Appellate Tribunal against the said order.
4. The learned Senior counsel appearing for the petitioner would submit that the petitioner is seriously prejudiced by the delay in the adjudication proceedings, more so because, what has been directed by the customs authorities is an absolute confiscation of the goods imported, and although a permission was given to redeem the goods, the redemption was subject to the condition that the goods will be re-exported. It is the case of the petitioner that similar goods have been permitted for import by the Customs Authorities and they place W.P.(c).No.8364 of 2017 : 6 : reliance on decisions which indicate that machines such as those imported by the petitioner were permitted clearance for home consumption. Taking note of the urgency that is projected by the learned Senior Counsel for the petitioner, I direct that, if the petitioner in the writ petition, as also the partners of the petitioner partnership, against whom personal penalties are imposed by Ext.P6 order, prefer appeals against Ext.P6 order, before the Central Excise and Customs Appellate Tribunal, Bangalore, within a period of two weeks from the date of receipt of a copy of this Judgment, after complying with all the procedural formalities, the Tribunal shall endeavour to consider and dispose the appeals on merits, within an outer time limit of three months from the date of receipt of a copy of this judgment. The Appellate Tribunal shall take note that the time limit granted in this judgment has been fixed keeping in mind the fact that the goods imported continue to be under Customs' custody and the petitioner is incurring huge amounts by way of demurrage/ground rent charges in connection with the storage of the imported goods. I further make it clear that, inasmuch as the petitioner's challenge against Ext.P6 order in this writ petition was premised on the alleged violation of the rules of natural justice, and I have specifically found that there was no violation of the rules of natural justice occasioned while passing Ext.P6 order, the appellate tribunal, while deciding the W.P.(c).No.8364 of 2017 : 7 : matter on merits, shall not remand the matter to the Commissioner of Customs solely on the said ground. It will be open to the petitioner to raise all legal contentions available to him, at the time of hearing of the appeal before the appellate tribunal.
The writ petition is disposed as above.
Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE sm/