IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 3RD DECEMBER 2008 / 12TH AGRAHAYANA 1930 WP(C).No. 32796 of 2008(D) -------------------------- PETITIONER(S): --------------- RAJESH SHANKARANARAYANA, BMP 32, 3RD CROSS, K.G COLONY, G.M. PALYA, THIPPASANDRA, BANGALORE-75. BY ADV. SRI.P.A.AUGUSTIAN SRI. T.R.JAGADEESH RESPONDENT(S): --------------- 1. THE COMMISSIONER OF CUSTOMS, CUSTOM HOUSE, WILLINGDOWN ISLAND, KOCHI - 682 009. 2. ADDITIONAL DIRECTOR, DIRECTORATE OF REVENUE INTELLIGENCE VILAKUNNEL, KAITHOTH ROAD, PALARIVATTOM, COCHIN-682 025. 3. THE CHAIRMAN OF COCHIN PORT TRUST, WILLINGDON ISLAND, KOCHI - 682 009. ADV. SRI.ABRAHAM THOMAS, CGC FOR R1 & 2 SC SRI.E.K.NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J ------------------- W.P.(C).32796/2008 -------------------- Dated this the 3rd day of December, 2008 JUDGMENT Heard learned counsel for the petitioner Mr.P.A.Augustian, learned CGSC Mr.Abraham Thomas and learned counsel for the Port Trust, Mr.E.K.Nandakumar. 2. Petitioner, who was working and residing abroad, purchased a Volkswagen Beetle Car, and when he returned to India, the Car was also imported. The car was in his possession only for a few months prior to import so that he could not claim the benefit of Transfer of Residence as per the Exim policy, which enables a person, who has been working and residing abroad, to import the Car subject to certain conditions, one of them being that he had been using it at least for one year prior to the date on which the car was imported. 3. Petitioner lodged the Bill of entry but the W.P.(C).32796/2008 2 customs officials declined to clear the same on the ground that the petitioner is not eligible to import the vehicle since it was not in his possession for a minimum period of one year prior to the date of entry. Proceedings under the Customs Act to determine whether the import of the vehicle is illegal and if so, whether it is liable for confiscation in terms of Section 111 of the Customs Act are to be completed. 4. Writ petition has been filed essentially seeking a direction to the respondents to release the vehicle in question pending finalization of the proceedings by the Customs Department. There is also a plea for refund as regards the demurrage charges sought to be imposed by the Port Trust. 5. A detailed counter affidavit filed by the Customs Department refers to the alleged ineligibility on the part of the petitioner in importing the Car, on TR Rules, and it is also alleged that the Customs Department is W.P.(C).32796/2008 3 entertaining a serious doubt as to whether the import effected by the petitioner, was actually on behalf of his Uncle one Rajagopalan. 6. It is upto the Customs Department to ascertain whether the person who has lodged the Bill of Entry is actually the owner of the vehicle or whether he was acting on behalf of another person. This is a matter for adjudication. But I do not see any reason, in the facts and circumstances of the case, why the vehicle should not be released to the petitioner by the Customs Department, pending adjudication, subject to certain conditions. In the result, writ petition is disposed of with the following directions:- (a). Respondents shall release to the petitioner the Volkswagen Beetle Car referred to in Ext.P1 registration certificate sought to be imported by the petitioner as per Ext.P2 Bill of Lading, on the petitioner depositing an amount equivalent to the fine that might W.P.(C).32796/2008 4 ultimately be imposed, on completion of the adjudication proceedings undertaken by the Department calculated on a percentage of the assessable value to be determined in this behalf by the adjudicating Officer, the first respondent, within one week from the date of receipt of a copy of this judgment. (b). Petitioner shall also furnish a bank guarantee for half of the assessable value of the vehicle, as determined by the first respondent, on a provisional basis, pending finalization of the adjudication proceedings. Such bank guarantee shall be kept alive for such period as is necessary for finalization of the adjudication proceedings. But the bank guarantee shall not be invoked except after finalization of the adjudication proceedings and completion of any appeal or a further appeal there from, at the instance of the petitioner, if he is so advised in that regard. But the bank guarantee shall be kept alive for such period as is required by the Customs Department. W.P.(C).32796/2008 5 (c). Petitioner shall also pay the demurrage charges as demanded by the third respondent, on a provisional basis, for the purpose of enabling him to get the vehicle released. It is made clear that payment of such demurrage charges by the petitioner will be without prejudice to his contentions and if it is ultimately found that the petitioner was entitled to import the vehicle, then, Customs Department will be liable for demurrage charges as demanded by the third respondent and as is observed by them in the counter affidavit filed by them. Contentions raised by either parties are left open to be agitated in appropriate proceedings under the Customs Act. V.GIRI, Judge mrcs