Dismissed

M/S.Bhushan Energy Ltd. v. Union of India

Orissa HC13 Sept 2016WP(C)/7035/2016

Case brief

AI extract

What is this about?

The Court dismissed a writ petition challenging an order imposing differential duty, interest, and confiscation of coal goods. It held that all contentions raised by the petitioners regarding procedural defects capable of being adjudicated by the appellate authority precluded interference at the current stage.

What did the court decide?

Writ application dismissed; original copy of Annexure-12 directed to be returned to petitioners counsel for filing statutory appeal within four weeks.

M/S.Bhushan Energy Ltd. Vs Union of India — Customs and Excise | Orissa HC (2016)

¶1

W.P.(C) No.7035 of 2016

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13.09.2016 Mr. Choudhury S. Mishra, learned Standing Counsel for Central Excise and Custom submit
s that he has filed Vakalatnama before the Registry on 25.8.2016. Office is directed to trace
out and tag the same with the record.

¶3

 Registry is directed to reflect the name of Mr. Choudhury S. Mishra, learned Standing
Counsel for Central Excise and Custom in the cause list.

¶4

 Heard Mr. K.K. Acharya, learned counsel for the petitioners and Mr. Choudhury S. Mishr
a, learned Standing Counsel for the Excise and Custom.

¶5

 Challenge in the present writ application has been sought to be made to the order date
d 17.2.2016 passed by the Commissioner of Customs (Preventive), Orissa, Bhubaneswar whereby th
e Commissioner came to direct as follows:-

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13.0 In view of the above, I pass the following order;

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ORDER

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 (i) I hold that the subject goods imported by M/s. BHUSHAN ENERGY Ltd., vide 01 Bill o
f Entry No.6615795 dated 23.4.2012 (imported 53100 MTs coal), having satisfied the definition
of Bituminous Coal in terms of Sub-heading Note (2) to Chapter 27, merit classification under
CTH-27011200. Consequently, I order for denial of the benefit of exemption under Sl.No.123 of
Notification No.12/2012-Cus, dated 17.3.2012 and hold that the duty on these goods is payable
@ BCD 5% + CVD 6% in terms of Sl.No.124 of Notification No.12/2012-Cus, dated 17.3.2012 read w
ith sub-section (1) of section 3 of the said Customs Tariff Act, 1975 along with Clean Energy
Cess @ Rs.50/- PMT and Edn. Cess @ 3% as applicable.

¶9

 (ii) I confirm the demand of the differential duty of Rs-1,70,83,842/- (Rupees One Cro
re Seventy Lakhs Eighty Three Thousand Eight Hundred Forty Two) under section 28(8) of the Cus
toms Act, 1962 in respect of the above Bill of Entry.

¶10

 (iii) I order for recovery of applicable Interest

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on the said Customs duty amounts mentioned at (ii) above, in terms of Section 28AA of the Cust
oms Act, 1962.

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 (iv) I hold that the subject goods of 53100.00 MT of Coal imported vide Bill of Entry
mentioned earlier and totally valued at Rs-16,10,31,597/-, are liable for confiscation under s
ection 111(d) and 111(m) of the Customs Act, 1962. I give the Importer an option to pay fine a
mounting to Rs-4,03,00,000/- (Rupees Four Crore and Three Lakhs) in lieu of confiscation in te
rms of Section 125 of Customs Act, 1962.

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 (v) I impose a penalty of Rs.1,70,83,842/- (One core seventy lakhs eighty three thousa
nd eight hundred and forty two) on the importers M/s. BHUSHAN ENERGY Ltd. under Section 112(a)
 of the Customs Act, 1962 for the act of Omission and Commission rend subject goods liable to
confiscation under section 111(d) and 111(m) of the Customs Act, 1962.

¶14

 This order is issued without prejudice to any other action that may be initiated or pe
nding under the provisions of the Customs Act, 1962 or any other Act for the time being in for
ce.

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 Custom (Preventive) Commissionerate
 Bhubaneswar

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 Admittedly, the impugned order under challenge is appealable under Section 129(A) (1)
of the Customs Act, 1962 before the Customs, Excise and Service Tax Appellate Tribunal, East Z
onal Bench, Kolkata and the petitioners instead of approaching the Appellate Tribunal, has com
e before this Court inter alia on the ground that adequate opportunity was not afforded to the
m to raise their defence in the absence of the opposite parties sending a further sample for t
est checking before an authorized laboratory. Various other contentions have been raised by Mr
. Acharya as well.

¶17

 We are of the considered view that all this contentions

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are capable of being heard and adjudicated by the appellate authority and no justifiable groun
d has been advanced before us to entertain this writ application. Consequently, while directin
g dismissal of the writ application, we further direct that original copy of Annexure-12 may b
e returned to the petitioners counsel for filing of statutory appeal. If any such appeal is fi
led before the Appellate Tribunal within a period four weeks from today along with a petition
for condonation of delay, the appellate Tribunal should do well to consider the same favourabl
y in view of the fact that the petitioners approached this Court by way of filing the present
writ application.

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 Accordingly, the writ application stands dismissed.

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 Urgent certified copy of this order be granted on proper application

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A free copy of this order be handed over to the learned Standing Counsel for the Centr al Excise & Customs.

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.. I. Mahanty, J.

¶23

Biswajit Mohanty, J.

¶24

M/S.Bhushan Energy Ltd. v. Union of India

Case brief

What is this about?

What did the court decide?

M/S.Bhushan Energy Ltd. v. Union of India

Case brief

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