Dismissed

The Commissioner, Customs Preventive Commissionerate v. Jennis K.L.

Kerala HC5 Aug 2021WA/985/2021

Case brief

AI extract

What is this about?

Revenue appellant challenged Single Judge's interim order releasing seized gold ornaments. Court found Department's reliance on a circular and pending appeal insufficient to disrupt interim order. Appeal dismissed without expressing merit opinion on underlying issues as statutory remedy was pending.

What did the court decide?

Appeal dismissed; no interference with the interim order directing release of seized goods.

The Commissioner, Customs Preventive Commissionerate Vs… — Customs and Excise | Kerala HC (2021)

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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 S.V.BHATTI

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THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

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THURSDAY, THE 5^TH DAY OF AUGUST 2021 / 14TH SRAVANA, 1943

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WA NO. 985 OF 2021

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AGAINST THE INTERIM ORDER PASSED BY THE LEARNED SINGLE JUDGE DATED 27.07.2021 IN W.P.(C) NO.13916/2021, AFFIRMED UNDER ORDER IN RP 505/2021 DATED 02.08.2021 OF HIGH COURT OF KERALA, ERNAKULAM

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APPELLANTS/ REVIEW PETITIONERS & RESPONDENTS 1-3 & ADDL.R5 IN W.P.(C) :

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1 THE COMMISSIONER, CUSTOMS PREVENTIVE COMMISSIONERATE 5TH FLOOR, CATHOLIC CENTRE, BROADWAY, COCHIN - 682 031.

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2 JOINT COMMISSIONER OF CUSTOMS CUSTOMS PREVENTIVE COMMISSIONERATE, 5TH FLOOR, CATHOLIC CENTRE, BROADWAY, COCHIN 682 031.

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3 OFFICE OF THE SUPERINTENDENT OF CUSTOMS, CUSTOMS PREVENTIVE UNIT, PALAKKAD-1 - 678 001.

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4 ASSISTANT COMMISSIONER, OFFICE OF THE ASSISTANT COMMISSIONER (PREVENTIVE), THRISSUR DIVISION, S.T.NAGAR, THRISSUR - 680 001 (IS IMPLEADED AS ADDL.R5 AS PER ORDER DATED 27/07/2021 IN IA 3/2021 IN W.P.(C) NO.13916/2021).

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BY ADV P.VIJAYAKUMAR

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RESPONDENTS/ PETITIONER & 4TH RESPONDENT IN THE W.P.(C) :

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1 JENNIS K.L., AGED 53 YEARS, S/O.LONAPPAN, KOTTALUKARAN HOUSE, NAMBIAR ROAD, P.O.PUTHUR, THRISSUR TALUK, THRISSUR DISTRICT - 680 014.

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WA NO. 985 OF 2021

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2 INSPECTOR, RAILWAY PROTECTION FORCE/ CRIME INTELLIGENCE WING (RPF/CIB) PALAKKAD - 678 001. BY ADVS.SRI.RAJIT SRI.DINESH RAO

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WA NO. 985 OF 2021

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JUDGMENT

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Dated this the 5^th day of August, 2021

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Bechu Kurian Thomas, J.

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This intra court appeal is preferred by the respondents in the writ petition against the interim order dated 27.07.2021 issued by the learned Single Judge.

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The appellants are aggrieved by the direction of the learned Single Judge to release the gold ornaments seized from the shop of the petitioner. According to the learned Assistant Solicitor General of India Sri.P.Vijayakumar, though the Customs Commissioner had, by Ext.P10 directed provisional release of gold seized from the writ petitioner on conditions, the seized articles could not be released on account of a circular which was omitted to be taken note of at the time of issuance of Ext.P10 order. According to the learned ASGI, the circular restricts the right of the Customs to release the seized goods. It was also submitted that a statutory appeal has been preferred against Ext.P10 and that they expect the same to be taken up for consideration in the immediate future.

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According to him, if in the meantime, the interim direction of the learned Single Judge, which is impugned in this appeal, is not

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WA NO. 985 OF 2021

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interfered with, the same shall prejudice the interests of the Revenue.

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We have heard the learned counsel for the first respondent Adv. Rajit as well as the learned counsel for the 2^nd respondent Adv.A.Dinesh Rao.

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The learned counsel for the first respondent invited our attention to the decision in Commissioner of Central Excise, Bhopal v. Minwool Rock Fibres Ltd. [(2012) 3 SCC 518] , where the Supreme Court had observed that the Departmental Circulars are not binding on the assessees or quasi-judicial authorities or courts. In the decision of the Delhi High Court in Additional Director General (Adjudication) v. M/s. Its My Name Pvt.Ltd. in Customs Appeal No.229/2019 also, it was held that the circulars of the Departments are not binding on quasi-judicial authorities. It was therefore submitted that the contention that Department is unable to release the articles due to a circular was not legally correct. The nature of the interim order issued by the learned Single Judge also conveys an indication that there was no serious objection for the Department at that point of time to release the goods.

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It is seen from the memorandum of appeal that pursuant to the interim order of the learned Single Judge, a review

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WA NO. 985 OF 2021

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petition was preferred by the Department, on 2-8-2021 which was dismissed. The learned Single Judge had while dismissing the review petition observed that if the Department was aggrieved by the order under Section 110A issued by the Commissioner of Customs, the remedy was to challenge the said order and not to prefer a review, which was nothing but an appeal in disguise.

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On a consideration of the entire materials on record, we find that the attempt of the Department is to bypass the remedy of an appeal against Ext.P10 and that too when, in the appeal preferred by them, interim orders have not been obtained as of yet. The extraordinary jurisdiction under Article 226 of the Constitution of India cannot be utilised by a party to a lis to arm themselves with a sword from this Court, while their statutory remedies are being pursued, unless there are extraordinary circumstances. The claim of the Department that there are extraordinary circumstances based upon the Circular issued on 16.08.2017, though attractive in the initial blush, is, in our view, on a deeper analysis, not of much substance.

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Since it is submitted across the Bar that the appeal against Ext.P10 order is pending consideration before the Appellate Tribunal, we are of the view that it is not proper for us to express any

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WA NO. 985 OF 2021

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opinion on the merits of the issue. We, therefore, find that in the circumstances that prevailed at the time of issuing the interim order, no cause arises to interfere with the same.

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Accordingly, the appeal is dismissed.

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Sd/- S.V.BHATTI, JUDGE

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Sd/- BECHU KURIAN THOMAS, JUDGE

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RKM

The Commissioner, Customs Preventive Commissionerate v. Jennis K.L.

Case brief

What is this about?

What did the court decide?

The Commissioner, Customs Preventive Commissionerate v. Jennis K.L.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

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