Karnataka High Court
M/S. Pavan Enterprises vs The Chief Commissioner Of Customs on 26 August, 2022
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 26TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION No. 16706 OF 2022 (T-CUS)
BETWEEN:
M/S. PAVAN ENTERPRISES
REP BY ITS PROPRIETOR
SHRI. VINU VARGHEESE EP-V/67A, EPPIKKAD
POST EDAPATTA, MALAPURAM DT.
KERALA 679326.
(UNREGISTERED PROPRIETOR FIRM)
...PETITIONER
(BY SRI.ARUN SHYAM, SR.COUNSEL FOR
SRI. SUYOG HERELE.E.,ADVOCATE)
AND:
1. THE CHIEF COMMISSIONER OF CUSTOMS
BENGALURU CUSTOMS ZONE
C.R. BUILDING
QUEENS ROAD,
BANGALORE 560 001
2. THE COMMISSIONER OF CUSTOMS (APPEALS)
BENGALURU
4TH FLOOR, BMTC BUILDING
ABVOE BMTC BUS STAND
OLD AIRPORT ROAD, DOMLURU
BENGALURU 560 071
3. THE JOINT COMMISSIONER OF CUTOMS
O/O THE ADDITIONAL COMMISSIONER OF CUSTOMS
BENGALURU CITY CUSTOMS COMMISSIONER
INLAND CONTAINER DEPOT
WHITE FIELD
BANGALORE 560 066.
...RESPONDENTS
(BY SRI. JEEVAN .J. NEERALGI., ADVOCATE)
2
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R3 TO
RELEASE THE DE-STUFFED IMPORTED GOODS IN BILL OF
ENTRY NO.9657461 DTD 21.11.2020 2229785 DTD 04.01.2021,
2229125 DTD 04.01.2020, 2510595 DTD 27.01.2021, 2511272 DTD
27.01.2021 AND 2509691 DTD 27.01.2021 CONSISTING OF
DEFATTED COCONUT CLASSIFIED UNDER TARIFF ITEM.CTH
23065020 AND TO ISSUE DEMURRAGE WAIVER CERTIFICATE IN
TERMS OF RULE 6(1)(L) HANDLING OF CARGO IN CUSTOMS
AREA REGULATION, 2009 BY CONSIDERING THE
REPRESENTATION/APPLICATION MADE BY THE PETITIONER ON
30.06.2022 PRODUCED AT ANNEXURE-A AND ETC.
THIS W.P. COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
In this petition, petitioner has sought for the following reliefs:-
" (i) Issue a writ in the nature of mandamus and direct the Respondent No.3 to release the de-stuffed imported goods in Bill of Entry No. 9657461 dated:.11.2020, 2229785 dated:
04.01.2021, 2229125 dated: 27.01.2021, 2510595 dated: 27.01.2021, 2511272 dated: 27.01.2021 and 2509691 dated: 27.01.2021 consisting of "
DEFEATED COCONUT" classified under Tariff/ item /CTH 23065020 and to issue demurrage waiver certificate in terms of rule 6(1) (1) Handling of Cargo in Customs Area Regulation, 2009 by considering the representation/application made by the Petitioner on 30.06.2022. (Produced at Annexure- A).
(ii) Issue a writ in the nature of mandamus and direct the Respondent No.3 to pay 3 cost, and damages to the petitioner to make good the loss incurred by the Petitioner.
(iii) Issue any other writ or order or direction and grant such other relief(s) as this Hon'ble Court may deem fit, in the facts and circumstances of the case, in the interest of justice and equity."
2. Heard learned Senior counsel for the petitioner and learned counsel for the respondent and perused the material on record.
3. In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned Senior counsel for the petitioner submits that the issue in controversy involved in the present petition is directly and squarely covered by the earlier decision of this Court in the case of M/s.Pavan Enterprises vs. The Chief Commissioner of Customs & Others -
W.P.No.15906/2022 dated 18.08.2022. It is submitted that the only difference / distinction that arises in the present petition and the Pavan Enterprises case (supra) is that while in the said case, the respondents - revenue had preferred the appeal and the same was pending without 4 there being any interim order but in the instant case, the respondents have not preferred any further appeal against the order passed in favour of the petitioner by the 2nd respondent. It is therefore submitted that the present petition also deserves to be disposed of in terms of the aforesaid decision.
4. Per contra, learned counsel for the respondents - revenue submits that aggrieved by the aforesaid order passed by the first appellate authority, the respondents did not prefer further appeal and the same is within the prescribed limited period of 90 days from 22.06.2022, on which date, the first appellate authority allowed the appeal preferred by the petitioner. It is therefore submitted that there is no merit in the present petition and the same is liable to be dismissed.
5. As rightly contended by the learned Senior counsel for the petitioner in Pavan Enterprises case supra, despite the respondents preferring further appeal from the order passed by the first appellate authority, this Court took into account that there is no interim order 5 passed in the said further appeal preferred by the respondents, coupled with the fact that the appeal being continuation of the original proceedings, since the first appellate authority had allowed the appeal filed by the petitioner vide order dated 22.06.2022, there was no impediment for the original authority to pass a provisional order of release of goods in terms of Section 110A of the Customs Act, 1962. Under these circumstances, since the issues involved in both the petitions are identical and similar in nature, I am of the considered opinion that the present petition also deserves to be disposed of in terms of the aforesaid decision.
6. In the result, I pass the following:-
ORDER
(i) Petition is hereby allowed.
(ii) *
(iii) The respondents are directed to release the subject goods in favour of the petitioner within a period of * Deleted vide Chamber order dated: 21.09.2022 6 one week from the date of receipt of a copy of this order, subject to the petitioner complying with the requirement of Section 110A of the Customs Act, 1962.
(iv) It is made clear that the release of the subject goods in favour of the petitioner pursuant to this order, would be without prejudice to the rights and contentions of the parties in the appeal, if any, or to be preferred by the revenue and the same would be subject to final outcome of the appeal.
(v) All rival contentions urged by the parties in the appeal, if any, or to be preferred are kept open and no opinion is expressed on the same.
Sd/-
JUDGE Srl.