Shaju a.K, v. Commissioner of Customs (Preventive Unit)

Kerala HC7 Jun 2024WA/303/2024

Case brief

AI extract

What is this about?

The High Court modified the single judge's order in five connected writ appeals concerning seized gold. It directed that registered GST dealers be entitled to release of the gold against a simple bond cum undertaking detailing properties liable to attachment, instead of demanding bank guarantees or property securities, provided the undertaking is executed within two weeks.

What did the court decide?

Release of seized gold against a simple bond cum undertaking detailing attachable properties; lower court order modified to remove requirement for bank guarantees; undertaking to be executed within tw

Shaju a.K, Vs Commissioner of Customs (Preventive Unit) — Customs and Excise | Kerala HC (2024)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR

¶4

&

¶5

THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.

¶6

FRIDAY, THE 7^TH DAY OF JUNE 2024 / 17TH JYAISHTA, 1946 WA NO. 551 OF 2024

¶7

AGAINST THE ORDER/JUDGMENT DATED IN WP(C) NO.28477 OF 2023

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OF HIGH COURT OF KERALA

¶9

APPELLANTS/PETITIONERS IN W.P.C

¶10

1 JOSE K. JOHN, AGED 54 YEARS S/O.JOHN, KOONAMPLAKKAL HOUSE, VI/348A, PERINCHERI P.O, THRISSUR, PIN - 680306

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2 BIJU V.K., AGED 48 YEARS S/O.KRISHNAN, VELLANCHERY HOUSE, PERINCHERRY P.O, THRISSUR, PIN - 680306

¶12

BY ADV HAARIS MOOSA

¶13

RESPONDENTS/RESPONDENTS IN W.P.C.

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1 UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF FINANCE, NORTH BLOCK, NEW DELHI, PIN - 110001

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2 COMMISSIONER OF CUSTOMS (PREVENTIVE), 5TH FLOOR, CATHOLIC CENTRE, BROADWAY, KOCHI, PIN - 682031

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3 SUPERINTENDENT OF CUSTOMS, CUSTOMS PREVENTIVE COMMISSIONERATE COCHIN, 5TH FLOOR, CATHOLIC CENTRE, BROADWAY, KOCHI, PIN – 682031

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BY ADV ALFRED LIONEL WINSTON M SR.PANEL COUNSEL-SRI.T.C KRISHNA

¶18

THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.06.2024, ALONG WITH WA.303/2024, 310/2024 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶19

W.A.Nos.551, 303, 310, 318 and 542 of 2024

¶20

2

¶21

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶22

PRESENT

¶23

THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR

¶24

&

¶25

THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.

¶26

FRIDAY, THE 7^TH DAY OF JUNE 2024 / 17TH JYAISHTA, 1946

¶27

WA NO. 303 OF 2024

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AGAINST THE ORDER/JUDGMENT DATED IN WP(C) NO.25252 OF 2023 OF HIGH COURT OF KERALA

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APPELLANTS/PETITIONERS

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1 SHAJU A.K, AGED 53 YEARS S/O KOCHAPPAN, 234, ALOOKKARAN, KALA NAGAR, KATTOOR (PO), THRISSUR - 680702 KERALA.

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2 JERIN JOSEPH, AGED 47 YEARS S/O JOSEPH, PROP: BEST GOLD, THEKKINIYATH HOUSE, PERINCHERI (PO), THRISSUR, PIN – 680306

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BY ADVS. M.P.SHAMEEM AHAMED AKHIL PHILIP MANITHOTTIYIL DANIYA RASHEED PALLIYALIL

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RESPONDENTS/RESPONDENTS

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1 COMMISSIONER OF CUSTOMS (PREVENTIVE UNIT), OFFICE OF THE COMMISSIONER OF CUSTOMS (PREVENTIVE), 5TH FLOOR, CATHOLIC CENTRE, BROADWAY, COCHIN, PIN – 682031

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2 THE SUPERINTENDENT OF CUSTOMS (PREVENTIVE UNIT), PALAKKAD, QMF4+XCG, METTUPPALAYAM ST, PARAKKUNNAM, VIDYUT NAGAR, PALAKKAD, KERALA, PIN - 678001

¶36

W.A.Nos.551, 303, 310, 318 and 542 of 2024

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3

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3 UNION OF INDIA, MINISTRY OF COMMERCE AND INDUSTRY, UDYOGBHAVAN, NEW DELHI 110107, REPRESENTED BY ITS PRINCIPAL SECRETARY, PIN – 110107

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SR.PANEL COUNSEL-SRI.T.C KRISHNA SRI.SREELAL N WARRIER-SC

¶40

THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.06.2024, ALONG WITH WA.551/2024 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶41

W.A.Nos.551, 303, 310, 318 and 542 of 2024

¶42

4

¶43

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶44

PRESENT

¶45

THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR

¶46

&

¶47

THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.

¶48

FRIDAY, THE 7^TH DAY OF JUNE 2024 / 17TH JYAISHTA, 1946

¶49

WA NO. 310 OF 2024

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AGAINST THE ORDER/JUDGMENT DATED IN WP(C) NO.24978 OF 2023 OF HIGH COURT OF KERALA

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APPELLANTS/PETITIONERS

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1 JOBY ROY, AGED 29 YEARS S/O M.C ROY, POOYAMKUTTY, KUTTAMPUZHA, ERNAKULAM-686681 KERALA.

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2 RAJEESH, AGED 27 YEARS S/O AYYAPPAN, PUTHANPURAKKAL, ANJUKUNNU, PANAMARAM P.O, WAYANNAD 670721 3 M/S CHENNAI GOLD HOUSE, JAIN PLAZA, SHOP NO.20, G-FLOOR, NO.63, THYAGARAYA ROAD, PONDY BAZAR, T-NAGAR, CHENNAI 600017 (REPRESENTED BY ITS PROPRIETOR, MR. PHIJO JOSE) BY ADVS. M.P.SHAMEEM AHAMED AKHIL PHILIP MANITHOTTIYIL DANIYA RASHEED PALLIYALIL

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RESPONDENTS/RESPONDENTS

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1 THE COMMISSIONER OF CUSTOMS (PREVENTIVE UNIT), OFFICE OF THE COMMISSIONER OF CUSTOMS (PREVENTIVE), 5TH FLOOR, CATHOLIC CENTRE, BORADWAY, COCHIN 682031

¶56

W.A.Nos.551, 303, 310, 318 and 542 of 2024

¶57

5

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2 THE SUPERINTENDENT OF CUSTOMS (PREVENTIVE UNIT), PALAKKAD, QMF4+XCG, METTUPPALAYAM ST, PARAKKUNNAM, VIDYUT NAGAR, PALAKKAD, KERALA 678001

¶59

3 UNION OF INDIA, MINISTRY OF COMMERCE AND INDUSTRY, UDYOGBHAVAN, NEW DELHI 110107, REPRESENTED BY ITS PRINCIPAL SECRETARY BY ADV THANUJA ROSHAN SR.PANEL COUNSEL-SRI.T.C KRISHNA SRI.SREELAL N WARRIER-SC

¶60

THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.06.2024, ALONG WITH WA.551/2024 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶61

W.A.Nos.551, 303, 310, 318 and 542 of 2024

¶62

6

¶63

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶64

PRESENT

¶65

THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR

¶66

&

¶67

THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.

¶68

FRIDAY, THE 7^TH DAY OF JUNE 2024 / 17TH JYAISHTA, 1946

¶69

WA NO. 318 OF 2024

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AGAINST THE ORDER/JUDGMENT DATED IN WP(C) NO.22333 OF 2023 OF HIGH COURT OF KERALA

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APPELLANTS/PETITIONER

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JOY C.D., AGED 51 YEARS S/O.DEVASSY, 41, CHIRAYINMEL, VALLACHIRAGRAMA PANCHAYATH, ARATTUPUZHA, THRISSUR, PIN – 680562

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BY ADVS.

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M.P.SHAMEEM AHAMED AKHIL PHILIP MANITHOTTIYIL DANIYA RASHEED PALLIYALIL

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RESPONDENTS/RESPONDENTS

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1 THE COMMISSIONER OF CUSTOMS (PREVENTIVE UNIT), OFFICE OF THE COMMISSIONER OF CUSTOMS (PREVENTIVE UNIT), 5TH FLOOR, CATHOLIC CENTRE, BROADWAY, COCHIN, PIN – 682031

¶77

2 THE SUPERINTENDENT OF CUSTOMS (PREVENTIVE UNIT) PALAKKAD, QMF4+XCG, METTUPPALAYAM ST, PARAKKUNNAM, VIDYUT NAGAR, PALAKKAD, KERALA -678001.

¶78

W.A.Nos.551, 303, 310, 318 and 542 of 2024

¶79

7

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3 UNION OF INDIA, MINISTRY OF COMMERCE AND INDUSTRY, UDYOGBHAVAN, NEW DELHI, REPRESENTED BY ITS SECRETARY, PIN – 110107

¶81

SR.PANEL COUNSEL-SRI.T.C KRISHNA SRI.SREELAL N WARRIER-SC

¶82

THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.06.2024, ALONG WITH WA.551/2024 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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8

¶84

W.A.Nos.551, 303, 310, 318 and 542 of 2024

¶85

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶86

PRESENT

¶87

THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR

¶88

&

¶89

THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.

¶90

FRIDAY, THE 7^TH DAY OF JUNE 2024 / 17TH JYAISHTA, 1946 WA NO. 542 OF 2024

¶91

AGAINST THE ORDER/JUDGMENT DATED IN WP(C) NO.5739 OF 2024 OF HIGH COURT OF KERALA

¶92

APPELLANT

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T.S.SAJEESH, AGED 42 YEARS S/O.T.G.SHANKARAN, THOTTIPARAMBIL HOUSE, ALLACHIRA P.O, THRISSUR, PIN – 680562

¶94

BY ADV HAARIS MOOSA

¶95

RESPONDENTS

¶96

1 UNION OF INDIA MINISTRY OF FINANCE, REPRESENTED BY SECRETARY, NORTH BLOCK, NEW DELHI, PIN – 110001

¶97

2 COMMISSIONER OF CUSTOMS (PREVENTIVE), 5TH FLOOR, CATHOLIC CENTRE, BROADWAY, KOCHI, PIN – 682031

¶98

3 SUPERINTENDENT OF CUSTOMS, CUSTOMS PREVENTIVE COMMISSIONERATE COCHIN, 5TH FLOOR, CATHOLIC CENTRE, BROADWAY, KOCHI, PIN – 682031 SR.PANEL COUNSEL-SRI.T.C KRISHNA SRI.SREELAL N WARRIER -SC

¶99

THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON

¶100

07.06.2024, ALONG WITH WA.551/2024 AND CONNECTED CASES,

¶101

THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶102

9

¶103

W.A.Nos.551, 303, 310, 318 and 542 of 2024

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J U D G M E N T

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============

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Dr. A.K.Jayasankaran Nambiar, J.

¶107

In all these writ appeals, the limited issue raised before us is with regard to the conditions imposed by the learned Single Judge while directing the Customs Authorities, who had seized the gold imported by the appellants herein, to release the same pursuant to an adjudication order that was in favour of the appellants herein.

¶108

The learned Single Judge had directed that in view of the favourable order obtained by the appellants at the hands of the adjudicating authorities, the seized gold could be released to them against either a bank guarantee or property security.

¶109

In the appeals before us, it is the contention of the appellants that in as much as they have registration under the GST Act and in that sense, they are not fly by night operators, the terms governing the release of the gold to them can be relaxed. They also submit that they are ready to offer security

¶110

10

¶111

W.A.Nos.551, 303, 310, 318 and 542 of 2024

¶112

in the form of a simple bond cum undertaking, that will clearly give the details of the properties owned by them and, further, will contain an express undertaking that in the event of the adjudication proceedings going against them, they will pay the Customs Department, the market value of the gold that was initially seized from them, and is now released to them against the bond-cum-undertaking aforementioned. The property details will be furnished in the undertaking with sufficient clarity, so that the Customs Department can proceed against the property in the event of the appellants not honouring their undertaking to pay the market value of the gold.

¶113

We have heard the learned counsel for the appellants as also the learned Standing Counsel for the Department.

¶114

On a consideration of the rival submissions, we find that in view of the fact that the appellants herein, who are registered dealers under the GST Act, have obtained the benefit of an adjudication order that directed the release of the seized gold, and the Department which is stated to have approached the Appellate Authority against the adjudication

¶115

11

¶116

W.A.Nos.551, 303, 310, 318 and 542 of 2024

¶117

order, has not obtained any order of stay staying the operation of the order of the adjudicating authority, the ends of justice would be served by directing the release of the seized gold against a simple bond cum undertaking on the lines indicated above, before the Customs Authorities.

¶118

Accordingly, the impugned judgment of the learned Single Judge, to the extent it directs the furnishing of bank guarantees/property securities as a condition for release of the seized gold, is modified so as to read that the appellants shall be entitled to a release of the gold seized from them by the Customs Department against a simple bond cum undertaking on the lines indicated above. On the appellants executing the said undertaking cum bond, by giving the details of the properties which can be proceeded against in the event of their breaching the undertaking to pay the market value of the seized gold in the event the adjudication proceedings go against them, the Customs Authorities shall forthwith release the gold seized from the appellants. To enable the customs authorities to do so, the appellants shall furnish the bond cum undertaking before the Customs Authorities within a period of

¶119

W.A.Nos.551, 303, 310, 318 and 542 of 2024

¶120

12

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two weeks from the date of receipt of a copy of this judgment.

¶122

The writ appeals are disposed as above.

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Sd/-

¶124

DR. A.K.JAYASANKARAN NAMBIAR

JUDGE

Sd/-

SYAM KUMAR V.M.

JUDGE

smm

W.A.Nos.551, 303, 310, 318 and 542 of 2024

¶131

13

¶132

APPENDIX OF WA 551/2024

¶133

PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE GST CERTIFICATE OF M/S.AVJ GOLD MANUFACTURERS Annexure A2 TRUE COPY OF THE BOND DATED 5-4-24

¶134

W.A.Nos.551, 303, 310, 318 and 542 of 2024

¶135

14

¶136

APPENDIX OF WA 303/2024

¶137

PETITIONER ANNEXURES Annexure A1 ORIGINAL COPY OF THE UNDERTAKING CUM BOND DATED 22.03.2024 Annexure A2 ORIGINAL COPY OF THE UNDERTAKING CUM BOND DATED 28.05.2024

¶138

W.A.Nos.551, 303, 310, 318 and 542 of 2024

¶139

15

¶140

APPENDIX OF WA 310/2024

¶141

PETITIONER ANNEXURES Annexure A1 ORIGINAL OF THE UNDERTAKING CUM BOND DATED 22.03.2024 OF THE 1ST APPELLANT Annexure A2 ORIGINAL COPY OF THE UNDERTAKING CUM BOND DATED 25.05.2024

¶142

W.A.Nos.551, 303, 310, 318 and 542 of 2024

¶143

16

¶144

APPENDIX OF WA 318/2024

¶145

PETITIONER ANNEXURES Annexure A1 COPY OF THE UNDERTAKING CUM BOND DATED 22.03.2024 Annexure A2 ORIGINAL COPY OF THE UNDERTAKING CUM BOND DATED 28.05.2024

¶146

W.A.Nos.551, 303, 310, 318 and 542 of 2024

¶147

17

¶148

APPENDIX OF WA 542/2024

¶149

PETITIONER ANNEXURES

¶150

Annexure A1 A TRUE COPY OF THE GST CERTIFICATE Annexure A2 TRUE COPY OF THE BOND DATED 5-4-24 Annexure A3 A TRUE COPY OF THE PROPERTY DEED NO.2402/2023/I DATED 22-11-2023 IN FAVOUR OF THE PETITIONER

¶151

W.A.Nos.551, 303, 310, 318 and 542 of 2024

¶152

18

Shaju a.K, v. Commissioner of Customs (Preventive Unit)

Case brief

What is this about?

What did the court decide?

Shaju a.K, v. Commissioner of Customs (Preventive Unit)

Case brief

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What did the court decide?

What the court decided

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