Bombay High Court
Raj Grow Impex Llp vs Union Of India And 6 Ors on 9 December, 2020
Author: Abhay Ahuja
Bench: Ujjal Bhuyan, Abhay Ahuja
11-ial-5735-2020
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO.5735 OF 2020
IN
WRIT PETITION (L) NO.3502 OF 2020
M/s. Raj Grow Impex LLP .. Applicant.
In the matter between
M/s. Raj Grow Impex LLP .. Petitioner.
v/s.
Union of India & Others .. Respondents.
Dr. Sujay Kantawalla with Mr. Prithwiraj Choudhari, Mr. Samsher Garud
and Ms. Juhi Valia i/b. Jaykar & Partners, for the Applicant/ Petitioner.
Mr. J. B. Mishra, for Respondent Nos.1 to 6.
Mr. Rahul Jain with Ms. Khushboo Rupani i/b. HSA Advocates, for
Respondent No.7.
CORAM: UJJAL BHUYAN &
ABHAY AHUJA, JJ.
DATE : 9th DECEMBER, 2020.
P.C:-
Heard learned Counsel for the parties.
2 This interim application has been filed for making certain modification/addition in the judgment and order dated 15 th October, 2020 whereby two writ petitions i.e. W.P. (L) No. 3503 of 2020 (M/s. Harihar Collections v/s. Union of India) and W.P. (L) No. 3502 of 2020 (M/s. Raj Grow Impex LLP v/s. Union of India) were allowed to the extent mentioned in the said judgment and order.
3 Applicant is the original petitioner in Writ Petition (L) No.3502 of 2020.
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4 The said writ petition was filed seeking direction in prayer
(b) to the respondents to clear the goods imported by the petitioner vide Bills of Entry Nos.5520732, 5520871 and 5520536 all dated 1st November, 2019.
5 Additionally, another prayer (c) was also made for direction to the respondents to release the imported goods vide seven Bills of Entry bearing Nos. 5520537, 5520538, 5520539, 5520540, 5520541, 5520872 and 5521191 on payment of redemption fine and penalty.
6 Since the two writ petitions were heard together, in paragraphs 4 and 4.1 of the judgment and order, the reliefs sought for were set out in the following manner:-
"4 By filing this petition under Article 226 of the Constitution of India, petitioner has sought for the following reliefs:-
(1) To set aside and quash communications dated 02.09.2020 of respondent Nos.5 and 6;
(2) To direct the respondents, more particularly respondent Nos.4 and 7, to clear the goods imported by the petitioner vide bills of entry bearing Nos.5720040, 5720192, 572069, 5722458, 5722730, 5719772, 5722243 and 57224576 all dated 18.11.2019.
4.1 In the other writ petition, i.e. Writ Petition No.3502 of 2020 in addition to relief No.1, petitioner seeks directions to the respondents, more particularly respondent Nos.4 and 7, to clear the goods imported by the petitioner vide bills of entry bearing Nos.5520732, 5520871 and 5520536, all dated 01.11.2019."
6.1 Thus from the above, it is seen that prayer (c) made by the applicant in Writ Petition (L) No. 3502 of 2020 got omitted in paragraph 4.1.
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7 In the judgment and order dated 15th October, 2020, it was
held as under:-
"36:- We have examined the grounds given in the order dated 01.10.2020 not as an appellate authority over the Commissioner but only to satisfy ourselves as to whether on such grounds a bona fide satisfaction can be arrived at that the order-in-original suffers from illegality or impropriety. Even on that aspect also, we refrain from expressing our final views since it is stated that application has been filed pursuant to the order dated 01.10.2020 which shall now be treated as an appeal, but the manner in which the order has been passed is definitely questionable and the contents of the order dated 01.10.2020 particularly the ground given as examined prima facie do not make out a case that the order-in-original suffers from such illegality and impropriety that suo motu revisional power under section 129D(2) should be exercised. Prima facie, on examination of the grounds as above, we cannot say that the adjudicating authority acted beyond the bounds of his authority. However, since the application has been filed which will now be decided by the Commissioner (Appeals) as an appeal, we only limit our examination to the justification or otherwise of not releasing the goods of the petitioner on the strength of the order dated 01.10.2020.
37 We have already discussed and noted that the order-in- original is holding the field. The same has neither been set aside nor stayed. Interestingly, respondent Nos.4 to 6 in para 16 of their affidavit have themselves admitted that the redemption fine and personal fine were levied proportionately to the quantity declared in the bills of entry. Petitioner has complied with the terms and conditions of the order-in-original and made the necessary payments. Out of charge has been issued. Because of warehousing of the goods under section 49 of the Customs Act, petitioner is required to pay a substantial amount to the customs authority. In the above context and after thorough consideration of all aspects of the matter, we are of the view that non-release or withholding of the imported goods of the petitioner any further would not be just and proper. At least the grounds given in the order dated 01.10.2020 which order itself was passed in a highly improper manner, do not justify that the goods should be withheld or denied release notwithstanding the order-in-original and compliance thereto."
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7.1 Finally, the two writ petitions were allowed in the following
terms:-
"38 Consequently we direct the respondents more particularly respondent Nos.4 to 7 to forthwith release the goods of the petitioner covered by bills of entry bearing Nos. 5720040, 5720192, 572069, 5722458, 5722730, 5719772, 5722243 and 5722456 all dated 18.11.2019. Similar direction also follows in Writ Petition No.3502 of 2020 in respect of bills of entry bearing Nos.5520732, 5520871 and 5520536 all dated 01.11.2019.
39 Both the writ petitions are accordingly allowed. We thought of imposing cost in this case but we have refrained ourselves from doing so."
7.2 From the above, we find that prayer clause (c) in W. P. (L) No.3502 of 2020 somehow got omitted from consideration and grant of consequential relief.
8 On 24th November, 2020, Mr. Venkatraman, learned Additional Solicitor General of India appeared for the respondents and resisted the prayer made in the interim application on the ground that respondents had decided to file SLP before the Supreme Court against the judgment and order dated 15th October, 2020. On his prayer, the following order was passed:-
" Heard Dr. Kantawala, learned Counsel for the Applicant and Mr. Venkatraman, Additional Solicitor General of India, for the Respondents.
2 This Interim Application has been filed by the Applicant for making certain additions in the judgment and order dated 15th October, 2020 passed by this Court disposing of the related Writ Petition (L) No. 3502 of 2020 along with Writ Petition (L) No.3503 of 2020.
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3 Submission made is that while delivering the judgment,
prayer clause (c) in Writ Petition (L) No. 3502 of 2020 was omitted which is required to be incorporated/added in paragraph 38 of the said judgment and order.
4 Mr. Venkatraman, learned Addl. Solicitor General has opposed the prayer made and has submitted that against the aforesaid judgment and order dated 15 th October, 2020, Respondents have decided to prefer SLP before the Supreme Court. 5 On a query by the Court, he submits that Respondents will file the said SLP within a day or two.
6 While opposing the prayer, learned Addl. Solicitor General has made submissions on merit. In this connection, he has referred to the averments made in the reply affidavit filed on behalf of the Respondents.
7 While we make it clear that the scope of the present Interim Application is very limited i.e. whether while allowing the two Writ Petitions, certain portion of the prayer made by the Applicant as the Petitioner in Writ Petition (L) No.3502 of 2020 got omitted and which is required to be added, nonetheless, we are of the view that since learned Addl. Solicitor General has submitted that Respondents are filing SLP within a day or two, hearing of this Interim Application may be deferred for a week. 8 Stand over to 3rd December, 2020 as was directed earlier."
8.1 The matter was thereafter called on 3rd December, 2020 on which date the following order was passed:-
" Heard Dr. Sujay Kantawala, learned counsel for the applicant and Mr. Anil C. Singh, learned Additional Solicitor General of India. 2 Referring to the order dated 24.11.2020, Mr. Anil C. Singh submits that Mr. N. Venkatraman could not appear before the Court today. However, he has informed him that the Special Leave Petition has been filed in the Supreme Court and it may be heard within a day or two.
3 Without expressing any opinion, we fix this matter on
09.12.2020. No further adjournment shall be granted."
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9 Today, when the matter is called upon, Mr. Mishra, learned
Counsel for Respondent Nos.1 to 6 in his usual fairness submits that though SLP has been filed, the said respondents have not been able to obtain any stay order from the Supreme Court.
10 Having heard learned Counsel for the parties and on due consideration, we modify our judgment and order dated 15 th October, 2020 by insertion/addition of the following sentence in paragraph 4.1 as well as in paragraph 38 thereof. The last line in paragraph 38 would thus read as under:-
" In addition, respondent Nos.4 to 7 are also directed to forthwith release the goods of the petitioner covered by seven Bills of Entry bearing Nos. 5520537, 5520538, 5520539, 5520540, 5520541, 5520872 and 5521191 on payment of redemption fine, penalty, customs duty and any other dues that may be payable as per law.
11 Interim application is accordingly disposed of. No order as to costs.
12 This order will be digitally signed by the Private Secretary/ Personal Assistant of this Court. All concerned to act on a digitally signed copy of this order.
(ABHAY AHUJA,J.) (UJJAL BHUYAN,J.) Digitally signed Smita by Smita R. Joshi R. Date: 2020.12.14 Joshi 12:46:09 +0530 S.R.JOSHI 6 of 6