IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.07.2010 CORAM The Hon'ble Mr.Justice T.S.Sivagnanam W.P.No.12968 of 2010 and M.P.Nos.1 and 2 of 2010 M/s.Unitech Enterprises Rep. By its Proprietor 88,Rana Pratap Market Karol Bagh New Delhi – 110 005. ... Petitioner Vs. 1.The Commissioner of Customs (Seaport-Imports) Custom House, No.60, Rajaji Salai Chennai – 600 001. 2.The Customs, Excise Service Tax Appellate Tribunal Shastri Bhavan, Haddows Road Nungambakkam, Chennai – 600 034. 3.Director General of Foreign Trade & Ex-Officio Additional Secretary to the Government of India, Ministry of Commerce and Industry, Department of Commerce, New Delhi. ... Respondents Prayer : Writ Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Certiorari to call for the records on the file of the second respondent in C/Misc/329/2009 in C/288/2009 and quash the said order of the second respondent passed in Misc. Order 252/2010 dated 07.05.2010 in C/Misc/329/2009 in C/288/2009. For Petitioner : Mr.N.Viswanathan For Respondents : Mr. T.R.Senthil Kumar SCGSC https://hcservices.ecourts.gov.in/hcservices/ O R D E R By consent, the Writ Petition itself is taken up for final disposal. 2. The prayer in the Writ Petition is for the issuance of Writ of Certiorari to quash the order passed by the second respondent dated 07.05.2010, passed in Miscellaneous Order No. 252 of 2010. The petitioner filed Bill Entry No.285843, dated 13.08.2009 for clearance of Old & Used Analogue Photocopies and Old/used Digital Multifunction Machines at a declared value of USD 59870(C&F). The petitioner is said to have submitted a letter dated 21.08.2009 to the first respondent furnishing all the technical features and other details regarding the consignment. The petitioner subsequently made a request stating that the case may be adjudicated without issue of show cause notice and personal hearings. The first respondent adjudicated the matter and by Order-in-Original dated 26.08.2009, rejected the value declared by the petitioner and re-determined the value of the cargo and ordered for confiscation of the goods under Section 111 (d) of the Customs Act, 1962 read with Section 3(3) of the Foreign Trade (Development & Regulation)Act, 1992. However, the first respondent gave an option to the petitioner to redeem the same on payment of a fine of Rs.10,25,000/- under Section 125 of the Customs Act, 1962 and also imposed a penalty of Rs.13,70,000/- under Section 112 (a) of the Customs Act, 1962. Aggrieved by the said order, petitioner preferred an appeal to the second respondent- Tribunal in Appeal No.288 of 2009. 3. The petitioner had filed Miscellaneous Application No.252 of 2010 for stay of the Order-in-Original as well as another Miscellaneous Application No.329 of 2009, seeking for release of the goods. When the applications were pending, the petitioner approached this Court by filing W.P.No.7189 of 2010 for the issuance of Writ of Mandamus to direct the second respondent-Tribunal to pass orders on the miscellaneous application for release of the goods. This Court, by an order dated 08.04.2010, disposed off the Writ Petition with a direction to the Tribunal to consider the miscellaneous application and pass orders within a period of four weeks from the date of the receipt of a copy thereof. 4. Thereafter, the Tribunal by an order dated 07.05.2010, held that it has only discretionary power to waive the requirement of pre-deposit of duty, interest and penalty in case of undue hardship for the purpose of hearing an appeal under Section 129(E) of the Act but it cannot order for release of goods prior to a decision in the appeal. However, the Tribunal held that they are not prima facie convinced that the impugned goods are not photocopier machines and are not subject to restriction under the DGFT's Notification No.31 of 2005 dated 19.10.2005. The Tribunal held that for release of the goods, the petitioner has to succeed in the appeal. As against such miscellaneous order of the Tribunal, the petitioner is before this https://hcservices.ecourts.gov.in/hcservices/ Court by way of the present Writ Petition. 5. I have heard the learned counsel appearing for the petitioner and the learned Standing Counsel appearing for the respondents. Elaborate submissions have been made by both the learned counsels on the merits. The learned counsel for the respondents also raised the question regarding the maintainability of the Writ Petition. I am of the view that the present Writ Petition filed against the order of the Tribunal in a miscellaneous application is maintainable as held by this Court in (Shasun Drugs & Chemicals Vs. Cestat, Chennai) 2006 198 E.L.T. 179 (Mad). The same view has also been taken in 2006 (204) E.L.T 381 (Bom.) Commissioner of Customs (Import) Vs. Pride Foramer and 2009 (236) E.L.T. 12 (Del.), Union of India vs. Classic Credit Ltd. Therefore, preliminary objection raised by the Department cannot be sustained and the Writ Petition filed against the order passed in a miscellaneous application is maintainable. 6. As pointed out by the learned counsel for the petitioner, this Court on earlier occasions has granted interim orders for release of similar goods subject to petitioner therein paying 25% of the enhanced value apart from furnishing bank guarantee or cash deposit to an extent of Rs. 14.712% on the enhanced value. It is to be noted that this order which was granted in W.P.No.12642 of 2010 dated 17.06.2010 was at the instance of the importer who approached this Court without availing the appeal remedy under the Customs Act. In the instant case, the petitioner chose to participate in the adjudication proceedings which has culminated in an Order-in-Original dated 26.08.2009. Being aggrieved by the order passed by the first respondent, the petitioner has also filed statutory appeal before the second respondent -Tribunal and the second respondent -Tribunal has also granted interim stay and the petitioner had also moved for release of the goods before the Tribunal. Therefore, when the petitioner has suffered an order before the first respondent, the validity of such order has to be finally tested only before the second respondent-Tribunal. However, the petitioner pleads difficulty, since the cargo which is lying in the port is suffering heavy demurrage on day to day basis and prayed for release of the goods subject to any reasonable condition that may be imposed by this Court. The learned counsel for the respondents would submit that the petitioner should comply with the conditions stipulated in the Order- in-Original to be entitled for release of the Cargo. At this stage, it is relevant to note the Hon'ble Division Bench in W.A.No.1508/2009 considered an identical issue relating to release of similar goods. The Hon'ble Division Bench after taking note of the earlier order passed by the Commissioner of Customs in Order-in-Original Nos.8177/2008, 8836/2008, 8855/2009 dated 26.09.2009, 27.02.2009 and 04.03.2009, passed the following order:- https://hcservices.ecourts.gov.in/hcservices/ "8. Keeping in view the averments made in paragraph 13 of the Grounds of Appeal and the earlier orders passed by the Department in Order-in-Original Nos.8177 of 2008, 8836 of 2008 and 8855 of 2009, dated 26.09.2009, 27.02.2009 and 04.03.2009 respectively, the interlocutory order passed by the learned Single Judge in M.P.No.1 of 2009 in W.P.No.18959 of 2009 stands modified to the effect that the Digital Multifunction Machine shall be released on payment of 25% of the enhanced value inclusive of Courter Vailing duty (as directed by the learned Single Judge) plus 12½% of the Chartered Engineer's value or enhanced value by way of bank guarantee. 9. The learned counsel for the first respondent submitted that as directed by the learned Single Judge, the first respondent has already paid 25% of the enhanced value. The writ appeal stands disposed of with a direction to the appellants to release the Digital Multifunction Machines immediately on the first respondent furnishing a bank guarantee for the remaining 12½% of the Chartered Engineer's value or enhanced value. The other contentions on merits are left open to the parties to be adjudicated either in the writ petition or before the competent authority. Consequently, the connected miscellaneous petition is closed. There will be no order as to costs." 7. Therefore, considering the fact that there had been an earlier direction passed by this Court in W.A.No.1508 of 21.10.2009 and also taking note of the fact that in the case of the petitioner, the first respondent had already passed an order dated 26.08.2009 re- determining the declared value of the goods and imposing redemption fine and penalty and the petitioner has filed an appeal against such order before the 2nd respondent Tribunal, this Court is of the considered opinion that the following order would meet the ends of justice:- " The respondents shall release the goods subject to the petitioner paying the entire duty as per re- determined value at US Dollars 69395 C&F equivalent to Rs.34,15,893/- and paying 50% of the redemption fine imposed in the order dated 26.08.2009. However, the penalty imposed in the order dated 26.08.2009, shall remain stayed till a final decision is taken by the second respondent -Tribunal in the pending appeal." The parties are at liberty to urge all the issues before the second respondent. The second respondent -Tribunal is requested to dispose of the pending appeal as expeditiously as possible preferably within a period of six months from the date of receipt of a copy of this order. https://hcservices.ecourts.gov.in/hcservices/ 8. In the result, the Writ Petition is disposed of with the above said observations. No costs. Consequently, connected miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar pbn/sd To 1)The Commissioner of Customs (Seaport-Imports) Custom House, No.60, Rajaji Salai Chennai – 600 001. 2)The Customs, Excise Service Tax Appellate Tribunal Shastri Bhavan, Haddows Road Nungambakkam, Chennai – 600 034. 3)Director General of Foreign Trade & Ex-Officio Additional Secretary to the Government of India, Ministry of Commerce and Industry, Department of Commerce, New Delhi. 2 cc To Mr.N.Viswanathan, Advocate, SR.52104 1 cc To Mr.T.R.Senthil Kumar, Advocate, SR.51902 W.P.No.12968 of 2010 trm(co) pmk.21.7.2010 https://hcservices.ecourts.gov.in/hcservices/