1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02/08/2011 C O R A M THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD) No.8526 of 2011 and M.P.(MD).No.1 of 2011 M/s.Sunshine International, rep. by its Partner Mr.Sheetal K.Jain, Kumbhat Complex, Basement No.12, Door No.700, P.H.Road, Aminjikarai, Chennai - 600 029. ... Petitioner Vs. 1.The Commissioner of Customs, Custom House, New Harbour Estate, Tuticorin - 628 004. 2.The Additional Commissioner of Customs, (Imports), Custom House, New Harbour Estate, Tuticorin - 628 004. 3.The Deputy Director, Office of the Directorate of Revenue Intelligence, Roche Road, Solin Garden, South Beach Road, Tuticorin - 628 004. ... Respondents Petitions filed under Article 226 of the Constitution of India praying for a Writ of Mandamus, directing the respondents herein to release the goods viz., 2400 Cases of Royalty Brand Non- Alcoholic Beverages - Ginger Beer, imported vide Bill of Entry No.3771975, dated 13.06.2011, on the value declared by the petitioner at USD 3,240.00 totally. For petitioner ..Mr.A.K.Jayaraj For respondents..Mr.R.Aravindan, Senior Central Government Standing Counsel for Customs ORDER The petitioner, who had imported 2400 Cases of Royalty Brand Non-Alcoholic Beverages - Ginger Beer, from Singapore and declared the value of the goods for clearance of the Bill of Entry No.3771975, dated 13.06.2011, has not been permitted to take delivery, alleging under valuation of the goods. 2.Pleadings disclose that apprehending arrest, the petitioner preferred an anticipatory bail application in Crl.O.P. (MD).No.7497 of 2011, on the file of the Madurai Bench of Madras https://hcservices.ecourts.gov.in/hcservices/ 2 High Court, wherein the Deputy Director, Office of the Directorate of Revenue Intelligence, Tuticorin, the third respondent herein had filed an counter affidavit alleging that the petitioner had suppressed the value of the goods and that the differential duty has been calculated at Rs.2,97,256/-. While ordering anticipatory bail on 27.06.2011, this Court directed the petitioner to deposit a sum of Rs.1,50,000/- to the Commissioner of Customs, Tuticorin. It is the grievance of the petitioner that though the Regulation 2 of the Customs (Provisional Duty Assessment) Regulations, 1963 and Section 18(1) of the Customs Act enables a provisional assessment of the duty on the imported goods or exported goods and that the competent authority is empowered to pass appropriate directions to release all the goods, subject to a direction to deposit with the proper officer such sum not exceeding 20% of the provisional duty, goods have not been released, despite the deposit of Rs.1,50,000/- in the name of the Commissioner of Customs, Tuticorin. In support of the mandamus sought for, the learned counsel for the petitioner also took this Court to Sections 17 & 18 of the Customs Act and to the relevant provisions of Rules 3 & 4 of the Customs Valuation (Determination of Price of Imported Goods) Rules and also to the Regulations stated supra. 3.Mr.R.Aravindan, learned Senior Panel Counsel for the Central Government, submitted that the differential duty arrived at by the proper officer is Rs.2,97,256/-. Though the learned counsel for the Government acknowledged the deposit of Rs.1,50,000/-, made as per the directions of this Court, in Crl.O.P.(MD).No.7497 of 2011, dated 27.06.2011, in favour of the Commissioner of Customs, Tuticorin, it is his further submission that for the balance amount of Rs.1,47,256/-, the petitioner may be directed to offer bank guarantee for release of goods. The submission of the learned counsel is placed on record. 4.Heard the learned counsel for the parties and perused the materials available on record. 5.As per Section 17 of the Customs Act, the importer is entitled to have the subject goods examined, assessed and cleared without undue delay. The customs authorities are, therefore, under statutory obligation to perform their duties without delay so that the petitioner need not have to pay demurrage charges. Even in cases where the importer is not in a position to file all the documents that required for assessment of the goods, Section 18 of the Customs Act, 1962 enables the authorities to make a provisional assessment pending production of the necessary documents by the importer. Rules 3 & 4 of the Customs Valuation (Determination of Prince of Imported Goods) clearly lay down that the value of the imported goods shall be transaction value and also if the value cannot be determined under the provisions of Clause (i) above, the value shall be determined by proceedings sequentially through Rules 5 to 8 of these Rules. Section 143 of the Customs Act, authorises the proper officer for clearance of the imported goods on the importer executing a bond in such sum, with such security or surety or approved. This power is vested for provisional release of the imported goods pending any enquiry or so. Section 18 of the Customs Act also empowers the proper officer to assess the duty provisionally under the circumstances mentioned therein. https://hcservices.ecourts.gov.in/hcservices/ 3 6.Perusal of the order, dated 27.06.2011, passed by this Court in Crl.O.P.(MD)No.7497/2011, shows that though an allegation has been made by the respondents to the effect that the petitioner has suppressed the value of goods and that he has to pay a sum of Rs.2,97,256/-, however, when ordering anticipatory bail, this court has directed the petitioner to deposit a sum of Rs.1,50,000/- in favour of the Commissioner of Customs, Tuticorin. Certainly, the said sum is more than 20% of the differential duty, arrived at by the respondents. Though the learned Central Government Standing Counsel prayed that the petitioner may be directed to offer bank guarantee for balance differential duty, this Court is not inclined to burden the writ petitioner. However, to show the bona fide, the petitioner is directed to offer a bank guarantee to the tune of Rs.50,000/- and for the balance amount shall execute a personal bond. Subject to satisfaction of the above said conditions imposed in this order, the goods viz., 2400 Cases of Royalty Brand Non- Alcoholic Beverages - Ginger Beer, imported, vide Bill of Entry No.3771975, dated 13.06.2011, shall be released by the respondents forthwith. If there is any delay in releasing goods, the respondents shall bear demurrage charges. 7.The writ petition is disposed of accordingly. Consequently, connected miscellaneous petition is closed. No costs. Sd/- Assistant Registrar (P&A) /True Copy/ Sub Assistant Registrar To 1.The Commissioner of Customs, Custom House, New Harbour Estate, Tuticorin - 628 004. 2.The Additional Commissioner of Customs, (Imports), Custom House, New Harbour Estate, Tuticorin - 628 004. 3.The Deputy Director, Office of the Directorate of Revenue Intelligence, Roche Road, Solin Garden, South Beach Road, Tuticorin - 628 004. +1cc Mr.R.Aravindan, Advocate Sr.No.25516 +1cc to Mr.A.K.Jeyaraj, Advocate Sr.No.25662 gcg ssk/02.08.2011 /6c-3p/- W.P.(MD) No.8526 of 2011 02.08.2011 https://hcservices.ecourts.gov.in/hcservices/