IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 11TH AUGUST 2008 / 20TH SRAVANA 1930 WP(C).No. 5244 of 2004(Y) ------------------------- PETITIONER: ------------ 1. THE COMMISSIONER OF CUSTOMS, CUSTOM HOUSE, COCHIN-9. 2. THE DEPUTY COMMISSIONER OF CUSTOMS, CUSTOM HOUSE, COCHIN-9. BY ADV.SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR GENERAL RESPONDENTS: ------------- 1. M/S. ALUMINIUM INDUSTRIES LTD., NO.1, CERAMIC ROAD, KUNDARA, QUILON. 2. STATE BANK OF TRAVANCORE REPRESENTED BY THE CHIEF MANAGER, KUNDARA BRANCH, QUILON. R1 BY ADV.SRI.E.K.NANDAKUMAR R2 BY ADV. SRI.M.PATHROSE MATTHAI (SR.) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC.5244/04 PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF ORDER NO.CDR/247/81-AP(I) DATED 22.8.1981 PASSED BY THE ASSTT. COLLECTOR OF CUSTOMS. EXT.P2: TRUE COPY OF JUDGMENT DATED 7.2.1984 IN O.P.NO.5049/81 FILED BY THE 1ST RESPONDENT. EXT.P3: TRUE COPY OF ORDER IN W.A.NO.150/84 OF THE SUPREME COURT OF INDIA DATED 31.1.1985. EXT.P4: TRUE COPY OF BANK GUARANTEE FURNISHED BY THE 1ST RESPONDENT. EXT.P5: TRUE COPY OF FINAL ORDER IN SLP (CIVIL) NO.1539/1985 DATED 22.4.1996 OF THE SUPREME COURT OF INDIA. EXT.P6: TRUE COPY OF LETTER NO.AGM/T/V/C & I/7 DATED 30.4.2001 OF THE STATE BANK OF TRAVANCORE ALONG WITH ITS ANNEXURES. /TRUE COPY/ THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.5244 OF 2004 ------------------------------------------- Dated this the 11th day of August, 2008 JUDGMENT This writ petition is filed by the Commissioner and the Deputy Commissioner of Customs, Kochi, essentially challenging the decision communicated through Ext.P6. Certain amounts are due from the first respondent company to the Union of India in terms of the provisions of the Customs Act, 1962. Such amounts can be recovered by enforcement proceedings against the company. The State Bank of Travancore had issued bank guarantee for such amount at the instance of the first respondent. The BIFR has proceedings with it, in relation to that company. The aforesaid bank was also an operating agency for quite some time in relation to the affairs of the first respondent, under the control of BIFR. The proceedings for recovery, either by invoking the bank guarantee or otherwise, is essentially a provision for enforcement and WPC.5244/04 Page numbers recovery of a liability due from the first respondent company to the Union of India in terms of the provisions of the Customs Act. Such distress action, apparently, falls within the purview of Sub- section (1) of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985, hereinafter, the 'SICA', for short. It is submitted by the second respondent that from 2001, the bank guarantee has not been renewed. Under such circumstances, the petitioners have to get appropriate orders from the BIFR in terms of the SICA. Hence, this writ petition is closed without prejudice to such course of action and leaving open all contentions. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge kkb.11/8.