IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURALE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 30TH SEPTEMBER 2008 / 8TH ASWINA 1930 W.A.No.1721 of 2004 ----------------------------------- AGAINST THE JUDGEMENT IN W.P.(C).12208/2004, DATED 21/07/2004 .................... APPELLANT/PETITIONER:- --------------------------------------- PARISONS FOOD PVT.LIMITED, CHEROOTY ROAD, CALICUT - 673 032, REPRESENTED BY ITS DIRECTOR N.K.KHALID. BY ADV. SRI.A.M.SHAFFIQUE (SR.) SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SMT.PRIYA MAHESH SMT.PRIYA MANJOORAN RESPONDENTS/RESPONDENTS:- -------------------------------------------------- 1. THE UNION OF INDIA, MINISTRY OF FINANCE (DEPARTMENT OF REVENUE), NEW DELHI. 2. DY. COMMISSIONER OF CUSTOMS (IMPORTS), O/O.THE COMMISSIONER OF CUSTOMS, CUSTOM HOUSE, COCHIN - 682 009. BY ASSISTANT SOLICITOR GENERAL OF INDIA SRI.P. PARAMESWARAN NAIR. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- H.L.Dattu, C.J. & Thomas P.Joseph, J. ---------------------------------------------------- W.A.No.1721 of 2004-C ---------------------------------------------------- Dated, this the 30th September, 2008 JUDGMENT H.L.Dattu,C.J. This Writ Appeal is directed against the orders passed by the learned Single Judge in W.P.(C).No.12208 of 2004, dated 21st July, 2004. By the impugned order, the learned Single Judge has rejected the writ petition. (2) In the writ petition filed, the petitioner had called in question the Customs Notification issued by the Central Government in No.120/2003 dated 1.8.2003, amendment in the notification No.21/2002-Customs, dated 1.3.2002. The said notification had been issued by the Central Government in exercise of its powers under sub-section (1) of Section 25 of the Customs Act, 1962. The said notification was questioned, mainly, on the ground, that, the same is impossible of performance. Therefore, it is arbitrary and opposed to Articles 14 and 19(1)(g) of the Constitution of India. While questioning the vires of the notification dated 1.8.2003, the petitioner had also called in question the demand notices issued by the Deputy Commissioner of Customs (Import) in No.PD.200204391 / S32/170/2003 AP(I) CUS. dated 20.11.2003, PD.200204391 / S32/170/2003 AP(I) CUS. dated 10.02.2004 and PD.200205376 / S32/170/2003 AP(I) CUS. dated 13.02.2004 (Exhibits P3, P4 and P5). W.A.No.1721 of 2004 - 2 - (3) This Court, while entertaining the Writ Appeal, by its order dated 17.9.2004, had passed the following interim order. It reads as under: “Writ Appeal is admitted. Mr.John Varghese, Senior Central Government Standing Counsel accepts notice for the respondents. It is stated by the learned counsel for the appellant that even before filing the writ petition the appellant had paid a sum of Rs.50 lakhs pursuant to the demands under Exts.P3 to P5 and that there was an unconditional stay in operation during the pendency of the writ petition in respect of the balance amount due under Exts.P3 to P5. Having regard to the facts and circumstances of the case there will be an interim order staying recovery of the balance amount due under Exts.P3 to P5 subject to the condition that the appellant shall furnish bank guarantee for the said amount within one month from today”. (4) Mr.A.K.Jayasankar, learned counsel appearing for the appellant, informs us that the appellant herein has complied with the interim orders passed by this Court dated 17.9.2004. (5) When the matter is posted for hearing, the learned counsel would inform us, that, the appellant would not question the vires of the impugned notification dated 1.8.2003; however, requests this Court to permit the appellant to question the correctness or otherwise of the demand notices issued by the Deputy Commissioner of Customs (Import) dated 20.11.2003, 10.02.2004 and 13.02.2004 (Exhibits P3, P4 and P5 respectively) before the Commissioner of Customs (Appeals) and, further, requests this Court to W.A.No.1721 of 2004 - 3 - direct the Appellate Authority to consider the appeal on merits without reference to the period of limitation. (6) In our opinion, the request of the learned counsel for the appellant appears to be reasonable and if it is granted, it would not cause any prejudice to the respondents herein. (7) In the above view of the matter, without going into the merits or demerits of the case of the appellant before us, we dispose of the appeal as under: Order (i) In so far as legality or otherwise of the Customs Notification issued by the Central Government in No.120/2003 dated 1.8.2003, amendment in the notification No.21/2002-Customs, dated 1.3.2002 is concerned, since it is not argued before us, we will not express any opinion on that. (ii) The appellant is permitted to question the correctness or otherwise of the demand notices issued by the Deputy Commissioner of Customs (Import) in No.PD.200204391 / S32/170/2003 AP(I) CUS. dated 20.11.2003, PD.200204391 / S32/170/2003 AP(I) CUS. dated 10.02.2004 and PD.200205376 / S32/170/2003 AP(I) CUS. dated 13.02.2004 (Exhibits P3, P4 and P5) before the first appellate authority, viz., Commissioner of Customs (Appeals) within a month's time from today. W.A.No.1721 of 2004 - 4 - (iii) If such appeals are filed within the time granted by this Court, we direct the Appellate Authority to consider the appeals on merits, without reference to the period of limitation. (iv) All the contentions of both the parties are left open. (v) The appellant shall maintain the Bank Guarantee, which was directed to be furnished by this Court while entertaining this Writ Appeal, till the disposal of the appeals by the first appellate authority. (vi) In view of the orders passed in the Writ Appeal, no orders need be passed in I.A.28 of 2007 and the same is, accordingly, closed. Ordered accordingly. H.L.Dattu Chief Justice Thomas P.Joseph vku/- Judge