Disposed

M/S Pavan Enterprises v. the Chief Commissioner of Customs

Karnataka HC5 Apr 2022WP/6016/2022

Case brief

AI extract

What is this about?

In a writ petition under Article 227, the High Court allowed the petitioner liberty to apply for provisional release of perishable defatted coconut goods under Section 110A of the Customs Act, 1962 without waiting for a certified copy, directing the adjudicating authority to decide expeditiously.

What did the court decide?

Liberty to petitioner to file application under Section 110A of Customs Act, 1962 within a week for provisional release of goods.

M/S Pavan Enterprises Vs the Chief Commissioner of… — Customs and Excise | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 05^TH DAY OF APRIL 2022

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BEFORE

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THE HON’BLE MR. JUSTICE B. M. SHYAM PRASAD

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WRIT PETITION NO.6016/2022 (T-CUS)

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BETWEEN :

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M/S PAVAN ENTERPRISES REP BY ITS PROPRIETOR, SHRI VINU VARGHEESE, EP-V-67A, EPPIKKAD POST, EDAPATTA, MALAPURAM DT. KERALA – 679 326.

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... PETITIONER

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(BY SRI. M. ARUN SHAYM, SENIOR ADVOCATE; SRI. SUYOG HERELE E., ADVOCATE)

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AND :

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THE CHIEF COMMISSIONER OF CUSTOMS BENGALURU CUSTOMS ZONE, C R BUILDING, QUEENS ROAD, BANGALORE – 560 001.

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THE COMMISSIONER OF CUSTOMS (APPEALS) BENGALURU, 4^TH FLOOR, BMTC BUILDING, ABOVE BMTC BUS STAND, OLD AIRPORT ROAD, DOMLUR, BENGALURU – 560 071.

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THE JOINT COMMISSIONER OF CUSTOMS O/O THE ADDITIONAL COMMISSIONER OF CUSTOMS,

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BENGALURU CITY CUSTOMS COMMISSIONER, INLAND CONTAINER DEPOT, WHITE FIELD, BANGALORE – 560 066.

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... RESPONDENTS

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(BY SRI.JEEVAN J. NEERALGI., ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R2 TO RELEASE THE DE-STUFFED IMPORTED GOODS IN BILL OF ENTRY NO.9288853 DATED 23.10.2020 CONSISTING OF “DEFATTED COCONUT” CLASSIFIED UNDER TARIFF ITEM/CTH 23065020 AND TO ISSUE DEMURRAGE WAIVER CERTIFICATE IN TERMS OF RULE 6(1) (I) HANDLING OF CARGO IN CUSTOMS AREA REGULATION, 2009 BY CONSIDERING THE REPRESENTATION MADE BY THE PETITIONER ON 03.03.2022 PRODUCED AT ANNEXURE-A; DIRECT THE R2 TO PAY COST, AND DAMAGES TO THE PETITIONER TO MAKE GOOD THE LOSS INCURRED BY THE PETITIONER.

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THIS WRIT PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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The petitioner, who has the benefit of an order in Appeal in A.No.99/2021-Cus (B-City), has sought for a direction to the second respondent to release the imported goods in Bill of Entry dated 23.10.2020 in No.9288853. It is undisputed that the controversy is because the petitioner contends that the imported goods

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is ‘ defatted coconut ’ anpd the authorities contend that it is ‘ desiccated coconut’ . It is further undisputed that if the order in the aforesaid appeal, which would vindicate the petitioner’s stand that the goods are defatted, is accepted by the authorities, the goods that are subject matter of the aforesaid Bill of Entry will have to be released forthwith to the petitioner without any condition.

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However, Sri Jeevan J Neeralgi, learned counsel for the second respondent, submits that the authorities have impugned the order in appeal in an appropriately instituted subsequent appeal before the Tribunal and he also submits that the petitioner, during the pendency of the proceedings before the original authority/the adjudicating authority, could have submitted a request for provisional release of the imported goods. If a request was accordingly made, the adjudicating authority could have considered releasing the goods on

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terms as permissible under Section 110A of the Customs Act, 1962.

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Sri Arun Shyam, learned Senior Counsel for the petitioner, submits that the order in appeal is dated 24.8.2021 and to the petitioner’s knowledge, the authorities have not preferred any appeal and in the absence of an appeal, the petitioner is entitled to the release of the imported goods. But, when it is pointed out that if the appeal is presently instituted and pending, the learned Senior Counsel submits that because it is so stated only now and the petitioner is yet to be served with notice of such appeals, the petitioner may be reserved liberty to approach the adjudicating authority for release of the imported goods with appropriate directions for expedited decision.

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Since Sri Jeevan J Neeralgi is categorical in his submissions that if an application was filed during the

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pendency of the original proceedings under Section110A of the Customs Act, 1962, the adjudicating authority could have considered provisional release of the goods subject to the terms as regards security for the price of the imported goods, the question of granting liberty as now requested is considered.

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If the petitioner could have availed such remedy during the pendency of the original proceedings, if there is a second appeal by the authorities and if it is not contested and that there is no interim order in such appeal by the authority, this Court is of the considered view that the petitioner must be at liberty to file an application for provisional release of the imported goods and there must be an expedited decision on such application. This would ensure that the imported goods which are perishable are not lost to the detriment of the petitioner, and the revenue’s interest would also be balanced. Hence, the following:

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ORDER

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The petition is disposed of with liberty to the petitioner to file an application under Section 110A of the Customs Act, 1962 before the adjudicating authority, even without waiting for a certified copy of this order. The petitioner may file such application within a week from today. The adjudicating authority if such application is filed, shall decide on the application in the light of the provisions of Section 110A of the Customs Act, 1962 within a week from the date of the application.

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Sd/JUDGE

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M/S Pavan Enterprises v. the Chief Commissioner of Customs

Case brief

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M/S Pavan Enterprises v. the Chief Commissioner of Customs

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