Kerala High Court
Somasundaram vs Commissioner Of Customs on 14 August, 2020
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
FRIDAY, THE 14TH DAY OF AUGUST 2020 / 23RD SRAVANA, 1942
WP(C).No.15215 OF 2020(B)
PETITIONER:
SOMASUNDARAM
AGED 56 YEARS
S/O. S. SAKTHIVEL, R/O. NO. 46/2269 H, THENI, TAMIL
NADU 625 531
PROPRIETOR OF M/S. SHRI AMMAN DHALL MILL, B-7/269/1, 2
BYE PASS ROAD, ANNANJI, THENI, TAMIL NADU 625 531
BY ADVS.
SRI.P.A.AUGUSTIAN
SMT.SWATHY E.S.
RESPONDENT:
COMMISSIONER OF CUSTOMS
CUSTOMS HOUSE, WILLINGTON ISLAND, COCHIN 682 009
BY ADV.SRI.SREELAL N WARRIER,SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.15215 OF 2020(B) 2
JUDGMENT
The petitioner herein states that he holds a valid import export code for import of food grains and cereals. He imported a consignment of Canadian Green Peas, which is a commodity whose import is restricted by Ext.P1 notification. Under the said notification, that is apparently issued with a view to protect domestic trade in the said commodity, strict conditions are seen imposed as regards the ports through which the imports can be effected, as also with regard to the minimum import price of Rs.200/- per kilo gram CIF, at which the Commodity can be imported. It would appear that certain importers, including a sister concern of the petitioner, had challenged the notification before various High Courts including this Court. All those Writ Petitions stand transferred to the Supreme Court pursuant to orders passed by the Supreme Court in transfer petitions filed before it by the respondents herein. In the Writ Petition, the petitioner has produced as Ext.P3, the order of the Supreme Court that clearly reveals the interdiction by the Supreme Court against further proceedings by the HIgh Courts in the writ petitions involving the said issue. In the same order, the Supreme Court has also indicated that the request of the importers concerned for interim directions, would be taken up by that Court pending disposal of the transferred petitions. It is in this factual backdrop that I am called upon to consider the prayer of the petitioner in WP(C).No.15215 OF 2020(B) 3 the instant writ petition, to permit a provisional clearance of the goods imported by him pending a consideration by the Supreme Court of the main issue with regard to the legality of the notification.
2. I have heard the learned counsel for the petitioner and the learned Standing counsel for the respondent.
3. On a consideration of the facts and circumstances of the case and the submissions made across the Bar, I am of the view that the prayer for provisional release of the goods sought for by the petitioner cannot be granted. It cannot be ignored that what the petitioner has chosen to import is a commodity in respect of which the Central Government, through the Directorate General of Foreign Trade (DGFT), has issued Ext.P1 notification restricting imports with a view to safeguard the domestic industry. The minimum import price for the product imported is fixed as 200/- per kilo gram CIF and it is not in dispute that the price at which the petitioner imported the commodity is significantly lower than the minimum import price stipulated. The goods, if allowed to be provisionally cleared, would enter the domestic market, thereby frustrating the very objective of the notification issued by the Central Government.
4. That apart, the challenge to the notification itself is pending consideration before the Supreme Court in a batch of transferred writ WP(C).No.15215 OF 2020(B) 4 Petitions from various High Courts. In those writ petitions, the Supreme Court has interdicted the High Courts from deciding the issue with regard to the legality of the notification and has also indicated that, in the event of any importer seeking interim directions, they would have to approach the Supreme Court for the same. Under the said circumstances, I am of the view that the petitioner, who imported goods in contravention of the notification aforementioned, cannot seek any exceptional treatment by approaching this Court for relief, in matters where the Supreme Court has interdicted the High Courts from considering the legality of the notification. Although the learned counsel for the petitioner would rely on a decision of the Supreme Court in Civil Appeal No.1057 of 2019 (Commissioner of Customs Vs.M/S.Atul Automations Pvt. Ltd), I am of the view that the said decision does not have any bearing on the peculiar facts of this case, more so when the very issue involved in the writ petition is under the consideration of the Supreme Court in the transferred writ petitions mentioned above.
The Writ Petition fails and is accordingly dismissed.
Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE mns WP(C).No.15215 OF 2020(B) 5 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE AMENDED NOTIFICATION EXHIBIT P2 TRUE COPY OF THE APPLICATION F NO 32/21`/008/500085/AM21 DATED 22-04-2020 EXHIBIT P3 TRUE COPY OF THE ORDER DATED 03-06-2020 IN TRANSFER PETITION (CIVIL) NO 496-509/2020 EXHIBIT P4 TRUE COPY OF THE INVOICE NO. 56127 DATED 28- 04-2020 EXHIBIT P5 TRUE COPY OF THE B/L NO.AFV0120383 DATED 27.04,2020 EXHIBIT P6 TRUE COPY OF THE CERTIFICATE OF ORIGIN DATED 30-04-2020 EXHIBIT P7 TRUE COPY OF THE B/E NO. 7978930 ON 23-06- 2020
EXHIBIT P8 TRUE COPY OF THE LETTER DATED 07-07-2020 EXHIBIT P9 TRUE COPY OF THE SUBMISSIONS DATED 17-07-2020 RESPONDENTS EXHIBITS: NIL //TRUE COPY// P.A TO JUDGE