Dismissed

Cochin Air Cargo Clearing House v. Commissioner of Customs

Kerala HC24 Sept 2020WP(C)/15358/2020

Case brief

AI extract

What is this about?

Petitioner sought direction to implement CESTAT order. Court held writ was premature as respondent retained statutory right to appeal to High Court within six months and ordered dismissal.

What the court decided

AI extract

Cochin Air Cargo Clearing House Vs Commissioner of Customs — Customs and Excise | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR THURSDAY, THE 24TH DAY OF SEPTEMBER 2020 / 2ND ASWINA, 1942 WP(C).No.15358 OF 2020(T)

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PETITIONER/S:

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M/S COCHIN AIR CARGO CLEARING HOUSE DOOR NO.30/369 A, OPPOSITE NAVEL AIR PORT, MATSYAPURI, COCHIN-682 029, REPRESENTED BY ITS MANAGING PARTNER, SMT.KOCHURANI, AGED 55 YEARS, W/O.MARIYA DAS.

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BY ADVS. SRI.P.A.AUGUSTIAN SMT.SWATHY E.S.

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RESPONDENT/S:

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COMMISSIONER OF CUSTOMS (PREVENTIVE), 5TH FLOOR, CATHOLIC CENTRE, BROADWAY, COCHIN-682 031.

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R1 BY SREELAL N. WARRIER, SC, CENTRAL BOARD OF EXCISE & CUSTOMS

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.15358 OF 2020(T)

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JUDGMENT

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The petitioner has approached this Court seeking a direction to the respondent to implement Ext.P7 final order of the CESTAT. When the matter was taken up for admission, it was submitted by the learned Senior Standing Counsel appearing on behalf of the respondent that, being aggrieved by Ext.P7 order of the Tribunal, the respondent intends to file a statutory appeal against the said order before a Division Bench of this Court. It was pointed out that as per the statutory provisions, the respondent has a period of six months to prefer an appeal before this Court against Ext.P7 order of the Appellate Tribunal, and it is only if they are unsuccessful in the appeal so filed that they would be legally obliged to implement the directions in Ext.P7 order of the Tribunal.

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On considering the submissions of the learned counsel for the respondent, and finding that the statutory period available to the respondent to prefer an appeal against Ext.P7 order had not expired, this court adjourned the matter so that it could ascertain the result of any appeal that the respondent was to prefer against Ext.P7 order of the Tribunal. When the matter was taken up today, counsel for the respondent was absent and hence this court was inclined to adjourn the matter to next week so as to ascertain whether the respondent had in fact filed the statutory appeal. The learned counsel for the petitioner, however, vehemently opposed the adjournment and insisted for orders on his interim application that sought a direction to the respondent to implement Ext.P7 order of the Appellate Tribunal pending disposal of the writ petition. On being told that the interim prayer, that was in fact the final relief sought for in the writ petition, could

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WP(C).No.15358 OF 2020(T)

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not be granted at the interim stage of the writ proceedings, the learned counsel, who was visibly irritated and did nothing to hide his feelings, prayed for a disposal of the writ petition itself. It is under the said circumstances that I now proceed to dispose this writ petition.

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It is the submission of the learned counsel for the petitioner that the mere fact that the respondent is contemplating the filing of an appeal against Ext.P7 order cannot be a reason for not issuing directions for the implementation of Ext.P7 order. The said submission, I am afraid, ignores the statutory scheme under the Customs Act that permits a person aggrieved by an order of the Appellate Tribunal, to prefer an appeal before a Division Bench of this Court within a period of six months from the date of receipt of the order of the Appellate Tribunal. It is trite that the appellate remedy being a statutorily conferred one, no litigant can be deprived of the statutorily permitted period for availing the appellate remedy, through coercive steps that effectively curtail the said period. Just as an assessee, who suffers an order of assessment cannot be compelled to fast track an appellate remedy through coercive steps initiated against him before the expiry of the statutory period available to him for approaching the appellate authority, the respondent herein cannot be compelled to implement Ext.P7 order when the statutorily granted time for filing an appeal against the said order is not over, and it is their stated case that they are preferring such an appeal against Ext.P7 order before a division bench of this Court. The right of the petitioner to insist on the respondent’s complying with Ext.P7 order will arise only in the event of the respondents not filing an appeal within the statutory period provided for the same or if an appeal, when preferred within the said time, is dismissed by the appellate authority.

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WP(C).No.15358 OF 2020(T)

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4. There is another aspect of the matter. Assuming that this court directs the respondent to implement Ext.P7 order of the appellate tribunal, before the statutory period for filing an appeal against the said order before the appellate authority is over, and the respondent fails to implement the directions of this court on the contention that it intends to file the statutory appeal within the time granted by the statute, this Court would not view the said conduct of the respondent as contumacious for the purposes of a contempt action at the instance of the petitioner herein. Prudence would dictate, therefore, that this court refrain from issuing peremptory directions at the said stage of the proceedings by following the well settled principles informing the exercise of writ jurisdiction, one of which is that the courts should not issue writs that are futile in nature.

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I find the prayers in the writ petition to be premature and accordingly dismiss the writ petition as such.

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Sd/-

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A.K.JAYASANKARAN NAMBIAR

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JUDGE

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WP(C).No.15358 OF 2020(T)

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE CB LICENSE.

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EXHIBIT P2 TRUE COPY OF THE LETTER DATED 11.10.2019. EXHIBIT P3 TRUE COPY OF THE SUSPENSION ORDER NO.VIII/48/11/2020 CCP TECH DATED 21.04.2020.

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EXHIBIT P4 TRUE COPY OF THE REVIEW OF ORDER OF SUSPENSION NO.VIII/48/11/2020 CCP TECH DATED 19.05.2020.

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EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 29.05.2020. EXHIBIT P6 TRUE COPY OF THE ORDER DATED 22.06.2020. EXHIBIT P7 TRUE COPY OF THE FINAL ORDER NO.20377 OF 2020 DATED 14.07.2020.

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EXHIBIT P8 TRUE COPY OF THE MAIL COMMUNICATION DATED 14.07.2020.

Cochin Air Cargo Clearing House v. Commissioner of Customs

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Cochin Air Cargo Clearing House v. Commissioner of Customs

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