IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.3.2011 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN Writ Petition No.7091 of 2011 1 N.C.ALEXANDER IMPORTER AND EXPORTER ... PETITIONER Vs 1 THE CHIEF COMMISSIONER OF CUSTOMS, CUSTOM HOUSE NARMADA BLOCK NO.60, RAJAJI SALAI CHENNAI 1. 2 THE COMMISSIONER OF CUSTOMS (SEAPORT - IMPORT) CUSTOM HOUSE NO.60 RAJAJI SALAI CHENNAI 1. 3 THE ASSISTANT COMMISSIONER OF CUSTOMS(GROUP 1) CUSTOM HOUSE NO.60 RAJAJI SALAI CHENNAI 1. [ RESPONDENTS ] Writ Petition filed under Article 226 of the Constitution of India praying for a writ of Mandamus directing the respondents to finally assess the Bills of Entry No.2978360 dated 16.03.2011 covered under Contract No.201015534 dated 25.10.2010 in terms of section 17 of Customs Act, 1962 read with section 3(i) of Customs Valuation (Determination of Price of Imported Goods) Rules 1988 and as amended in 2007 on the basis of contract price and the invoice value declared by the petitioner/Importer and release of the imported goods viz. Apples covered under the aforesaid Bills of Entry. For petitioner : Mr.B.Satish Sundar For respondents : Mr.K.Ravianandapadmanabhan O R D E R The learned counsel appearing on behalf of the petitioner had submitted that this Court had been passing a number of orders, in https://hcservices.ecourts.gov.in/hcservices/ similar facts and circumstances, as in the present writ petition, directing the respondents to release the goods in question, on the petitioner paying 30% of the differential duty and on his furnishing a personal bond for the balance amount. The learned counsel appearing on behalf of the petitioner had relied on one of such orders, dated 1.3.2011, made in W.P.No.4981 of 2011. 2. The learned counsel appearing on behalf of the petitioner had submitted that this Court may be pleased to pass a similar order, as in the other similar writ petitions, as there are no changes in the facts and circumstances of the present case. 3. He had also submitted that, when other similarly placed importers of apples are not suspected of undervaluing their goods, it is improper for the respondents to suspect the bona fides of the business transactions of the petitioner, who has been carrying on the business, in importing of apples from other countries, for many years. The respondents are acting at the behest of certain persons, who are competitors in the business of importing of apples, as that of the petitioner. As such, the baseless allegations made in the counter affidavit filed on behalf of the respondents, in the present writ petition, cannot be accepted. 4. He had also submitted that, as per the provisions of Sections 74 and 78 of the Indian Evidence Act, 1872, the documents produced by the petitioner, before the respondents, should be presumed to be true and authentic. The respondents cannot suspect the veracity of such documents, without having sufficient evidence to do so. The allegations of the respondents that the petitioner is under invoicing the goods in question, while importing them, has not been sufficiently substantiated, with acceptable evidence. Thus, it is clear that the act of the respondents, in detaining the goods in question, without releasing the same, is mala fide in nature. The request made on behalf of the respondents that an order may be passed by this Court for the provisional release of the goods, by directing the petitioner to pay 50% of the differential duty, in cash, and on furnishing a personal bond for the balance amount, is arbitrary and inappropriate. 5. Per contra, the learned counsel appearing for the respondents had submitted that the original contract, based on which the petitioner had imported the goods in question, does not seem to be genuine in nature. There are many discrepancies found in the documents produced by the petitioner before the respondents. The Apostille, certified by the Secretary of State, the State of Washington, United States of America, does not contain the necessary https://hcservices.ecourts.gov.in/hcservices/ particulars, as to the person in whose favour it had been issued and the purpose for which it has been issued. 6. He had also submitted that there are many variations in the pricing of the apples, said to have been purchased by the petitioner from the United States of America, for the purpose of importing the same into India, in the course of his business activities. The petitioner had been under invoicing the goods, with the mala fide intention of avoiding payment of the appropriate customs duty, as per law. He had also submitted that a detailed investigation is being conducted by the respondents in this regard. In such circumstances, this Court may be pleased to order provisional release of goods in question, on the petitioner paying 50% of the differential duty, in cash, and on his furnishing a personal bond for the balance amount, subject to the adjudication proceedings to be conducted by the respondents. 7. In view of the averments made in the affidavit filed in support of the writ petition and in the counter affidavit filed on behalf respondents and in view of the submissions made by the learned counsels appearing on behalf of the parties concerned, and on a perusal of the records available, and in view of the earlier orders passed by this Court, this Court finds it appropriate to direct the respondents to release the goods in question, on the petitioner fulfilling the following conditions: The petitioner shall pay 50% of the differential duty, and for the balance amount, the petitioner shall furnish a personal bond. On compliance of both the conditions, the respondents shall release the goods in question, forthwith. However, it is made clear that it would be open to the respondents to pass final orders, on completion of the adjudication process, in respect of the payment of customs duty, liable to be paid by the petitioner, if any, and to initiate other appropriate proceedings against the petitioner, if he is found to have evaded payment of the customs duty, as alleged by the respondents, in accordance with the relevant provisions of law. The petitioner shall co-operate, fully, in the proceedings that may be initiated by the respondents, for the assessment of customs duty. https://hcservices.ecourts.gov.in/hcservices/ The writ petition is ordered accordingly. No costs. Connected M.P.No.1 of 2011 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar lan To: 1 THE CHIEF COMMISSIONER OF CUSTOMS, CUSTOM HOUSE NARMADA BLOCK NO.60, RAJAJI SALAI CHENNAI 1. 2 THE COMMISSIONER OF CUSTOMS (SEAPORT - IMPORT) CUSTOM HOUSE NO.60 RAJAJI SALAI CHENNAI 1. 3 THE ASSISTANT COMMISSIONER OF CUSTOMS(GROUP 1) CUSTOM HOUSE NO.60 RAJAJI SALAI CHENNAI 1. 1 cc To Mr.K.Ravi Anantha Padmanaban, Advocate, SR.21271 1 cc To Mr.B.Sathish Sundar, Advocate, SR.20979 Writ Petition No.7091 of 2011 jsv(co) pmk.24.3.2011 https://hcservices.ecourts.gov.in/hcservices/