IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 13TH OCTOBER 2011 / 21ST ASWINA 1933 WP(C).No. 26577 of 2011(V) -------------------------- PETITIONER(S): --------------- M/S.NATIONAL TIMBERS, KATHRIKADAVU, KALOOR, COCHIN-682 017, REPRESENTED BY ITS MANAGING PARTNER, SHYAD. BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENT(S): --------------- 1. UNION OF INDIA, REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF CUSTOMS AND CENTRAL EXCISE, NEW DELHI-110 001. 2. COMMISSIONER OF CUSTOMS, CUSTOMS HOUSE, COCHIN-682 009. 3. ASSISTANT COMMISSIONER OF CUSTOMS (IMPORT), CUSTOMS HOUSE, COCHIN-682 009. 4. ASSISTANT COMMISSIONER OF CUSTOMS (REFUND), CUSTOMS HOUSE, COCHIN-682 009. ADV. SRI.JOHN VARGHESE,SC,CEN.BOARD OF EXCIS FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).26577/11 APPENDIX PETITIONER(S) EXHIBITS EXT.P1- TRUE COPY OF THE NOTIFICATION NO.102/207-CUSTOMS DATED 14-9-2007. EXT.P2- TRUE COPY OF LETTER DATED 21-6-2011 OF THE DIVISIONAL FOREST OFFICER, PERUMBAVOOR. EXT.P3- TRUE COPY OF THE PASS ISSUED BY THE FOREST DEPARTMENT OF KARNATAKA. EXT.P4- TRUE COPY OF THE JUDGMENT DATED 23-11-2009 PASSED BY THIS HON'BLE COURT IN WP(C)NO.33566/09. EXT.P5- TRUE COPY OF THE ORDER NO.E&I/29/08-09 DATED 5-8-2010 OF THE INTELLIGENCE OFFICER-3, DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM AT EDAPPALLY. EXT.P6- TRUE COPY OF THE ORDER NO.2388/2011 DATED 06-09-2011 OF THE 4TH RESPONDENT. EXT.P7- TRUE COPY OF THE ORDER NO.26/2011 DATED 4-2-2011 OF THE 3RD RESPONDENT. EXT.P8- TRUE COPY OF THE JUDGMENT DATED 22-3-2011 PASSED BY THIS HONOURABLE COURT IN W.P.(C)NO.4809 OF 2011. EXT.P9- TRUE COPY OF THE JUDGMENT DATED 21-7-2011 PASSED BY THIS HONOURABLE COURT IN W.P.(C)NO.17829 OF 2011. EXT.P10- TRUE COPY OF THE RELEVANT PAGES OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT BEFORE THIS HONOURABLE COURT IN W.P.(C)NO.17829 OF 2011. EXT.P11- TRUE COPY OF THE CONTINUITY BOND DATED 18-08-2011. EXT.P12- TRUE COPY OF THE ORDER NO.248/A/2011 DATED 01-09-2011 ISSUED BY THE 4TH RESPONDENT. EXT.P13- TRUE COPY OF THE PACKING LIST S/M/P/LIST NO.DGT-62/11-12 DATED NIL. EXT.P14- TRUE COPY OF THE PACKING LIST S/M/P/LIST NO.DGT-13/11-12 DATED NIL. EXT.P15- TRUE COPY OF THE PACKING LIST S/M/P/LIST NO.DGT-14/11-12 DATED NIL. W.P.(C).26577/11 -2- EXT.P16- TRUE COPY OF THE PACKING LIST S/M/P/LIST NO.DGT-2052/11-12 DATED NIL. EXT.P17- TRUE COPY OF THE COMMERCIAL INVIOCE NO.3617/2011 DATED 27-07-2011 OF WAJILAM EXPORTS(SINGAPORE) PRIVATE LIMITED. EXT.P18- TRUE COPY OF THE COMMERCIAL INVOICE NO.3620/2011 DATED 27-07-2011 OF WAJILAM EXPORTS(SINGAPORE) PRIVATE LIMITED. EXT.P19- TRUE COPY OF THE NOTICE F.NO.S32/76/2011. AP(1).CUS.DATED 16-09-2011 OF 3RD RESPONDENT. EXT.P20- TRUE COPY OF THE EXPLANATION DATED 22-09-2011 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P21- TRUE COPY OF THE NOTICE F.NO.S30/88/2011. AP(1).CUS.DATED 28-09-2011 OF 3RD RESPONDENT. EXT.P22- TRUE COPY OF THE PETITION DATED 27-09-2011 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P23- TRUE COPY OF THE BILL OF ENTRY NO.4749331 DATED 26-09-2011. EXT.P24- TRUE COPY OF THE PACKING LIST AND MEASUREMENT LIST DATED NIL RESPONDENTS' EXHIBITS EXT.R3(a)- TRUE COPY OF THE SHOW CAUSE NOTICE DATED 5.10.11 ISSUED TO THE PETITIONER EXT.R3(b)- TRUE COPY OF THE BILL OF ENTRY NO.4245660 DATED 2.8.2011 (True copy) P.A. To Judge ANTONY DOMINIC, J ....................................................... W.P.(C).26577/2011 .............................................. Dated this the 13th day of October, 2011 JUDGMENT Heard the learned counsel appearing for the petitioner and the learned Standing Counsel appearing for the respondents. 2. Petitioner is an importer of timber through Cochin Port Trust. Petitioner had imported two consignments of teak and Pyinkado. The controversy in this writ petition is mainly regarding the conversion of the quantity from Hoppus Ton into Cubic metres. While the petitioner contends that conversion factor should be one Hoppus Ton is = to 1.416 Cubic metre, the conversion factor adopted by the respondents is one Hoppus Ton is = to 1.8027 Cubic metre. Though the conversion factor may not have any relevance at the time of payment of customs duty and additional customs duty for clearance of the cargo in question, this assumes relevance at the stage the importer claims refund of additional customs duty, based on the sales tax he has paid. 3. It appears from the pleadings that while the log list of the imported consignments, showed that the seller of the petitioner W.P.(C).26577/11 2 themselves had adopted the conversion factor of 1.8027 Cubic metre and that adopting the same conversion factor, the Customs Department insisted that the petitioner should show such quantity in the bill of lading. It is also seen that noticing that the petitioner had indicated in the bill of lading the imported quantity adopting the conversion factor 1.416, the Department has now initiated adjudication proceedings and issued Ext.R3(a) show cause notice, calling upon the petitioner to file their explanation in the matter. It is at that stage the writ petition is filed. 4. One among the prayers sought by the petitioner is that the respondents be directed to conduct physical verification of the goods for converting the same into Cubic metres. 5. In the counter affidavit filed by the respondents although they have raised various contentions objecting to the contentions of the petitioner that conversion factor should be 1.416 and not 1.8027, respondents have expressed their no objection for the physical verification of the Cargo in question. Therefore, at this stage it is unnecessary for this Court to go into the merits of the W.P.(C).26577/11 3 controversy raised, except to direct that physical verification of the consignment be conducted and the volume in Cubic metres be quantified. It is directed that once such process is completed, it will be open to the petitioner to pay the customs duty and additional duty as applicable and clear the goods on that basis. The entire process shall be completed within ten days from the date of production of a copy of this judgment along with a copy of the writ petition. Writ petition is disposed of as above. ANTONY DOMINIC, Judge mrcs