Kerala High Court
Ace Digital Systems vs The Union Of India on 2 September, 2010
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 25728 of 2010(M)
1. ACE DIGITAL SYSTEMS, 5/4,RAMMY ROAD,
... Petitioner
Vs
1. THE UNION OF INDIA,REPRESENTED BY THE
... Respondent
2. COMMISSIONER OF CUSTOMS,
3. THE DIRECTOR GENERAL OF FOREIGN TRADE,
For Petitioner :SRI.P.A.AUGUSTIAN
For Respondent :SRI.THOMAS MATHEW NELLIMOOTTIL,SC,CB EX
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :02/09/2010
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NO.25728 OF 2010(M)
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Dated this the 2nd day of September, 2010
J U D G M E N T
Heard the counsel for the petitioner and the Assistant Solicitor General for the respondents.
2. Petitioner states that, they have imported old and used digital multi functional printer with accessories and filed bill of entry in the Cochin Customs for its release. The Cochin Customs held the goods to be a restricted item and according to the counsel for the petitioner, an adjudication order, requiring the petitioner to remit duty, fine and penalty has been passed. Although statutory remedy of appeal as provided under the provisions of the Customs Act itself is available still, this writ petition has been filed on the reasoning that, if delay is caused in clearing the goods, that will result in payment of demurrages. On this basis, the writ petition is filed praying that, without prejudice to the remedies available to the petitioner to challenge the adjudication order, petitioner be allowed to clear the goods on payment of duty in full and 50% of the fine and penalty and on furnishing a bond for the balance amount due. WPC.No. 25728/2010 :2 : Counsel for the petitioner also relies on Ext.P10 judgment of this court in support of the request that is made in this writ petition.
3. First of all, when a statutory remedy of appeal against an order of adjudication is available to the petitioner, the course open to the petitioner is to file appeal seeking remedies, including for the release of the goods in question. In that view of the matter, the writ petition itself is not maintainable and should not be entertained by this court.
4. Even otherwise, if the goods are to be ordered to be released to the petitioner pending their filing the appeal and its disposal, I feel that this court will not be justified in directing the respondents to release the goods on the terms suggested by the petitioner. On the other hand, if this court is to direct release of the goods, this court is also bound to protect the interest of the Government of India also. Therefore I am not persuaded to direct release of the goods on the terms suggested by the petitioner.
5. Therefore, it is directed that, if the Petitioner is willing to pay duty in full, and 50% of the fine and penalty and furnish bank guarantee for the balance amount due, goods shall be released to WPC.No. 25728/2010 :3 : the petitioner. Petitioner to keep the Bank Guarantee alive for a period of six months, and in the meanwhile, shall file appeal and obtain appropriate interlocutory orders, as otherwise, it will be open to the respondents to invoke the Bank Guarantee and realise its dues in full.
Writ petition is disposed of as above.
(ANTONY DOMINIC) JUDGE vi/