Madras High Court
M/S.Bluemax Impex (India) Pvt. Ltd vs The Commissioner Of Customs on 24 August, 2012
Author: M.Jaichandren
Bench: M.Jaichandren
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 24-08-2012 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.13049 of 2012 and M.P.No.1 of 2012 M/s.Bluemax Impex (India) Pvt. Ltd. D.No.5-1-749 & 750, Supreme House Bank Street, Koti, Hyderabad-500195 Rep. By its Authorized Signatory Mr.Ved Prakash Krishanani .. Petitioner. Versus 1. The Commissioner of Customs (Seaport-Imports), Customs House No.60, Rajaji Salai, Chennai-600 001. 2. The Additional Commissioner of Customs (Gr.5A) Customs House, No.60, Rajaji Saai, Chennai-600 001. 3. The Assistant Commissioner of Customs (Gr.5A) Customs House, No.60, Rajaji Salai, Chennai-600 001. 4. The Deputy Commissioner of Customs (SIIB) Customs House, No.60, Rajai Salai, Chennai-600 001. .. Respondents. Prayer: Petition filed under Article 226 of the Constitution of India, seeking for a Writ of Mandamus directing the respondents herein to provisionally assess and release the goods under import, viz.,GLX Dual sim Chinese Cellular Phone, covered under Bill of Entry No.5232333 dated 18.11.11, in terms of Section 110 A of the Customs Act, 1962 read with Customs (Provisional Duty Assessment Regulations) 1963. For Petitioner : Mr.N.Viswanathan For Respondents : M/s.Rajnish Pathiyil O R D E R
Heard the learned counsel for the petitioner, as well as the learned counsel appearing on behalf of the respondents.
2. It has been stated that the petitioner had imported GLX Dual Sim Chinese Cellular Phones, under Bill of Entry No.5232333, dated 18.11.2011. The petitioner has been issued with the importer and exporter code, bearing No.0909021937, by the office of the Zonal Joint Directorate General of Foreign Trade, Hyderabad.
3. It has been further stated that the petitioner had declared the value of the goods imported by it, at Rs.2,41,67,109.74/-, for the purpose of assessment and payment of the necessary duty. However, the authorities concerned had detained and seized the goods in question, under a mahazar dated 9.12.2011. Thereafter, a show cause notice had been issued, by the first respondent, dated 4.4.2012, asking the petitioner to show cause as to why the goods imported by the petitioner should not be confiscated, as it had made a wrong declaration, in terms of Section 46 of the Customs Act, 1962. The petitioner had also been asked to show cause, as to why the value declared by the petitioner should not be revised and the differential Countervailing Duty collected from it besides proposing the imposition of penalties, under Sections 112 (a) and 114A of the Customs Act, 1962. It has been further stated that the customs authorities had detained the goods, wrongly, in spite of the fact that there was no mis-declaration, by the petitioner, as alleged in the show cause notice, dated 4.4.2012, issued by the first respondent.
4. In the counter affidavit filed on behalf of the respondents it has been stated that the petitioner had cleared similar goods imported by it, through the Air Cargo Complex, Hyderabad, declaring the retail sale price at Rs.2,500/- and Rs.2,700/-, depending on the models. However, for the import of similar goods, through the Chennai Sea Port, the petitioner had declared the retail selling price of the cell phones, ranging from Rs.685/- to Rs.2550/-. As such the petitioner has mis-delcared the retail selling price of the goods imported through the Chennai Sea Port, with the mala fide intention of evading payment of the actual Customs Duty. Therefore, the goods in question had been detained by the customs authorities concerned. Therefore, a show cause notice, dated 4.4.2012, had been issued to the petitioner, by the first respondent. Instead of filing its reply to the show cause notice, dated 4.4.2012, the petitioner has preferred the present writ petition, before this Court, under Article 226 of the Constitution, for the provisional release of the goods in question.
5. At this stage of the hearing of the writ petition the learned counsel appearing on behalf of the petitioner had submitted that the petitioner had paid the entire Customs Duty on the enhanced value of the goods, as per the valuation of the customs authorities concerned. Thereafter, it is not open to the respondents to detain the goods in question, based on the allegation that the petitioner had mis-declared the retail price of the goods in question.
6. The learned counsel had also submitted that the provisional release of the goods in question, by the respondents, would be subject to the adjudication process and the final orders to be passed by the authorities concerned. He had further submitted that the petitioner would file its reply to the show cause notice, dated 4.4.2012, issued by the first respondent and it would also participate in the adjudication process, which the respondents may initiate, in respect of the goods in question. It has been further stated that the petitioner would also comply with the requirement of executing a personal bond, as required by the authorities concerned, as a condition precedent for the release of the goods. He had further submitted that as the goods in question are not prohibited goods, the authorities concerned should pass an order for the provisional release of the goods, in terms of Section 110 A of the Customs Act, 1962.
7. The learned counsel appearing on behalf of the petitioner had relied on the following decisions in support of his contentions:
1. Bajrangbali Trading Company Vs. Union of India 2012(275) E.L.T. 311 (P&H)
2. M/s.Blumax Impex (India) P. Ltd. Vs. The Commissioner of Customs (W.P.Nos.11588 and 11590 of 2012, dated 25.6.2012)
8. Per contra, the learned counsel appearing on behalf of the respondents had submitted that the goods in question had been detained due to the mis-declaration of the retail selling price of the goods, by the petitioner. Therefore, a show cause notice, dated 4.4.2012, had been issued, by the first respondent. While so, it would not be appropriate for the authorities concerned to entertain the request of the petitioner for the provisional release of the goods in question.
9. The learned counsel had further submitted that the petitioner had undertaken to comply with certain conditions, as mentioned in the letter, dated 10.1.2012, for the release of the goods in question. However, the petitioner had not complied with such conditions. Instead, the petitioner has moved the present writ petition, before this Court for the provisional release of the goods in question. In such circumstances, this Court may be pleased to dismiss the writ petition, as it is devoid of merits.
10. In view of the submissions made by the learned counsels appearing on behalf of the petitioner, as well as the respondents, and on a perusal of the records available, it is noted that the petitioner had paid the entire customs duty, payable by the petitioner, on the enhanced value of the goods, based on the assessment made by the authorities concerned. Thereafter, it is for the respondents to release the goods in question, provisionally, subject to the adjudication process and the consequential orders that may be passed thereon. It is not the case of the respondents that the goods in question are prohibited goods. Further, the petitioner is prepared to furnish a personal bond, as required by the authorities concerned, for the release of the goods in question. In such circumstances, this Court finds it appropriate to direct the respondents to release the GLX Dual sim Chinese Cellular Phone, covered under Bill of Entry No.5232333, dated 18.11.2011, provisionally, subject to the adjudication process that may be initiated by the authorities concerned, in respect of the said goods. The goods in question shall be released by the respondents, as prayed for by the petitioner, in the present writ petition, within a period of ten days from the date of receipt of a copy of this order. The writ petition is ordered accordingly. No costs. Consequently, connected miscellaneous petition is closed.
Index:Yes/No 24-08-2012 Internet:Yes/No csh To
1. The Commissioner of Customs (Seaport-Imports), Customs House No.60, Rajaji Salai, Chennai-600 001.
2. The Additional Commissioner of Customs (Gr.5A) Customs House, No.60, Rajaji Saai, Chennai-600 001.
3. The Assistant Commissioner of Customs (Gr.5A) Customs House, No.60, Rajaji Salai, Chennai-600 001.
4. The Deputy Commissioner of Customs (SIIB) Customs House, No.60, Rajai Salai, Chennai-600 001.
M.JAICHANDREN,J.
csh Writ Petition No.13049 of 2012 24-08-2012