IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 4TH DECEMBER 2008 / 13TH AGRAHAYANA 1930 WP(C).No. 25947 of 2008(L) ----------------------------------- PETITIONERS : ----------------- 1. MOHIMTULAY TOUSEEF AHMED SHAFIQUDDIN, PROPRIETOR, AFTAAB EXPORTS, 107, KADRI APARTMENT, NEW HALL ROAD, KURLA (W), MUMBAI-400070. 2. ALLURE IMPEX, 28, CENTURY BAZAR LANE, PRABHADEVI, MUMBAI-400025, REPRESENTED BY THE POWER OF ATTORNEY HOLDER ATIQ EBRAHIM SHAIKH, 19, ESHWAR BHAVAN, CO-OPERATIVE HOUSING SOCIETY, ERSKIN ROAD, MUMBAI-400003. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENTS : ------------------ 1. UNION OF INDIA, REPRESENTED BY THE CENTRAL BOARD OF CUSTOMS AND CENTRAL EXCISE, NEW DELHI. 2. THE COMMISSIONER OF CUSTOMS, COCHIN-09. 3. THE SUPERINTENDENT, SIIB, CUSTOMS, COCHIN-09. 4. THE INVESTIGATING OFFICER, SIIB, CUSTOMS HOUSE, COCHIN-09. ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR SRI.GEORGE THOMAS MEVADA,ADVOCATE COMMISSIONER SRI.TOJAN J.VATHIKULAM,SC,C.B. EXCISE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/12/2008 ALONG WITH WPC NO.24765 OF 2008 AND WPC NO. 24779 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J. ------------------------------ W.P.(C) Nos. 24765, 24779 & 25947 OF 2008 ------------------------------ Dated this the 4th day of December, 2008 JUDGMENT Petitioner in W.P (C) No.24765 of 2008 and petitioner in W.P (C) No.24779 of 2008 are the petitioners in W.P.(C) No.25947 of 2008. I will refer to the facts in W.P.(C) No.25947 of 2008 because disposal of the same would resolve the dispute in the other writ petitions also. 2. Petitioners, stated to be proprietary concerns having import code issued by the Director General of Foreign Trade, imported goods for home consumption, on the strength of the bill of entry issued by the 2nd respondent. Bill of entry was submitted along with the commercial invoice and the packing list to the respondents. Containers were destuffed at the Container Freight Station at Petta. Goods were examined by 9 officials of the Department of Customs. But the goods were not released apparently, on the allegation that there is undervaluation. 3. Petitioners approached this court in W.P.(C) Nos.24765 and 24779 of 2008, which were disposed of under W.P.(C) 24765 of 2008 & connected cases 2 Ext.P5 judgment directing release of the goods on bank guarantee for differential value, as may be assessed, by the 3rd respondent. This was not done and according to the petitioners, the 2nd respondent, with a view to refrain from complying with the directions contained in Ext.P5, issued Exts.P6 and P6(a), on the premise that packing list is not reflected in the Invoice/Bill of Entry. This was challenged by the petitioners. 4. Petitioners voluntarily got an inspection of the goods done by an officer appointed by this court. The Advocate Commissioner inspected the goods and has filed a report. Learned counsel for petitioners submits that a perusal of the report would indicate that there is substantial parity between the goods as noted in the packing list and the list prepared by the Advocate Commissioner. He prays for release of goods. 5. Learned counsel for respondents submits that there is strong suspicion regarding undervaluation of the goods and therefore, an adjudication of the assessable value is required. That there is an uncertainty as to who is the importer, at least, in respect of one portion of the consignment. W.P.(C) 24765 of 2008 & connected cases 3 6. Having heard Mr.George Poonthottam, learned counsel appearing for petitioners and Mr.Tojan J. Vathikulam, learned counsel appearing for respondents, I am of the view that it would be appropriate that the adjudication proceedings stated to have been undertaken by the 2nd respondent, Commissioner of Customs, be completed at the earliest. 7. In the result, the 2nd respondent is directed to complete the adjudication proceedings undertaken against the petitioners, in relation to the import of the articles sought to be effected as per Exts.P2 and P2(a), without further delay, at any rate, within 6 weeks from the date of receipt of copy of the judgment. It is made clear that it is open to the adjudicating authority to ensure the appearance of the importer, before actually directing the release of the goods on completion of the adjudication. I had made this clear, in my earlier interim order passed on 19.09.2008 and the same can be taken note of by the adjudicating authority. In spite of a direction issued in that behalf, if the importer fails to appear before the adjudicating authority, it is open to the adjudicating authority to seek the personal appearance of the importer for the purpose of adjudication. But if there is any difficulty on the W.P.(C) 24765 of 2008 & connected cases 4 part of the importer in doing so, then he is entitled to seek exemption from personal appearance or seek permission to appear through a counsel or through an authorised representative. Such appearance through an authorised representative or a counsel can be treated by the adjudicating authority as sufficient for the purpose of completing adjudication. But it is open to the adjudicating authority, in such circumstances, to insist upon the personal appearance of the importer before directing release of the goods and also see that the identity of the importer is established beyond any reasonable doubt. W.P.(C) No.25947 of 2008 is disposed of as above. Though W.P.(C) Nos.24765 of 2008 and 24779 of 2008 were disposed of earlier, the judgment was later reviewed. No further orders are necessary in view of the directions issued in W.P.(C) No.25947 of 2008. They are accordingly closed. V.GIRI JUDGE pac