IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.S.R.BANNURMATH & THE HONOURABLE MR. JUSTICE KURIAN JOSEPH THURSDAY, THE 4TH JUNE 2009 / 14TH JYAISHTA 1931 WA.No. 970 of 2009 --------------------------- AGAINST THE JUDGEMENT IN WPC.10429/2009 Dated 06/04/2009 .................... APPELLANT/PETITIONER ------------------------------------ MOUNT ZION COLLEGE OF ENGINEERING, (A CHARITABLE EDUCATION SOCIETY) KADAMMANITTA.P.O, PATHANAMTHITTA - 689 649, REPRESENTED BY ITS CHAIRMAN K.J. ABRAHAM. BY ADV. SRI.C.S.MANILAL RESPONDENTS/RESPONDENTS ---------------------------------------------- 1. THE ASSISTANT COMMISSIONER OF CUSTOMS (IMPORTS), CUSTOM HOUSE, WILLINGTON ISLAND, COCHIN - 682 003. 2. THE COMMISSIONER OF CUSTOMS, CUSTOM HOUSE, WILLINGDON ISLAND, COCHIN - 682 003. 3. THE SUPERINTENDENT OF CUSTOMS, CUSTOM HOUSE, WILLINGTON ISLAND, COCHIN - 682 003. BY STANDING COUNSEL SRI.JOHN VARGHESE THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.R.Bannurmath, C.J. & Kurian Joseph, J. ------------------------------------------ W.A.No.970 of 2009 ------------------------------------------ Dated, this the 4th day of June, 2009 JUDGMENT Kurian Joseph, J. Appellant is the petitioner in the writ petition. The writ petition was filed aggrieved by Ext.P10 communication issued by the third respondent. The issue pertains to the release of goods. In view of the likelihood of imposition of fine and penalty, the first respondent permitted the release of goods on payment of duty, on execution of bond and on furnishing bank guarantee for an amount of Rs.99,76,932/-. We find from the statement filed on behalf of the respondents that the amount comprises of differential duty to the tune of Rs.29,88,742/- and Rs.69,88,190/- which is forty per cent of the assessable value which is likely to be imposed as fine and penalty. We find it difficult to appreciate the stand taken by the respondents on insisting on bank guarantee for the said amount. W.A.No.970/2009 - 2 - 2. The very liability is yet to be fixed. Whether the appellant is liable to be imposed such fine and penalty is itself the subject matter of the adjudication yet to take place. Therefore, it will be unreasonable to impose an onerous condition by way of bank guarantee in respect of an amount which is likely to be fixed as fine and penalty in the adjudication proceedings which is yet to take place. The learned Single Judge was not inclined to exercise his discretionary jurisdiction. However, we find that the crucial aspects which we have adverted to are not dealt with in the judgment. 3. In the above circumstances we set aside the judgment of the learned Single Judge and dispose of the writ petition with the following directions: i) The appellant will pay the duty to the tune of Rs.2,56,916/-. ii) The appellant will execute a bond for an amount of Rs.1,74,70,476/-. W.A.No.970/2009 - 3 - iii) The appellant will furnish bank guarantee for an amount of Rs.29,88,742/-. iv) The appellant will also furnish appropriate security for an amount of Rs.69,88,190/-. v) On the appellant complying with the conditions as above, the goods will be released to them forthwith. Writ appeal is disposed of as above. S.R.Bannurmath, Chief Justice Kurian Joseph, Judge vns