IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 17TH JUNE 2011 / 27TH JYAISHTA 1933 WP(C).No. 31474 of 2010(H) --------------------------------------- PETITIONER(S): ------------------------ M/S.SHREE GANESH STEEL ROLLING MILLS LTD., 14-A ENNORE,HIGH ROAD,CHENNAI-600 019, REP.BY ITS MANAGING DIRECTOR, ASOK KUMAR SARAF, NO.148,POONAMMALLUR HIGH ROAD, KILPAUK,CHENNAI 600 010. BY ADV. SRI.M.S.SAJEEV KUMAR RESPONDENT(S): --------------------------- THE COMMISSIONER OF CUSTOMS, CUSTOM HOUSE, WILLINGTON ISLAND, KOCHI-9. BY SR ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,SC,CB EC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts -2- WP(C)NO.31474/2010 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE BILL OF ENTRY NO.152877/22/12/04 DATED 22/12/2004. P2 COPY OF THE EXTRACT OF NOTIFICATION NO.21/2002 DATED 01/03/2002 AND CONDITION NO.20 APPENDED THERETO. P3 COPY OF THE BANK GUARANTEE NO.3/2005 DATED 19/01/2005. P4 COPY OF THE LETTER DATED 4/1/2006 P5 COPY OF THE REVALIDATED BANK GUARANTEE TILL 17/07/2006. P6 COPY OF THE LETTER DATED 29/6/2006. P7 COPY OF THE REVALIDATED BANK GUARANTEE TILL 17/1/2007. P8 COPY OF THE NOTICE DATED 11/12/2006 P9 COPY OF THE REVALIDATEDBANK GUARANTEE UP TO 17/7/2007. P10 COPY OF THE NOTICE DATED 13/6/2007 P11 COPY OF THE REVALIDATED BANK GUARANTEE UPTO 16/1/2008. P12 COPY OF THE LETTER DATED 14/12/2007. P13 COPY OF THE END-USE-CERTIFICATE DATED 06/12/2007. P14 COPY OF THE REVALIDATED BANK GUARANTEE TILL 15/7/2008. P15 COPY OF THE NOTICE DATED 23/6/2008. P16 COPY OF THE LETTER DATED 30/7/2008. P17 COPY OF THE BANK GUARANTEE NO.134/2008 DATED 30/07/2008. P18 COPY OF THE NOTICE DATED 05/12/2008. P19 COPY OF THE REVALIDATED BANK GUARANTEE UP TO 14/07/2009. P20 COPY OF THE REQUEST LETTER DATED 12/1/2009 TO CANCEL BANK GUARANTEENO.3/05. P21 COPY OF THE LETTER DATED 29/1/09. P22 COPY OF THE REVALIDATED BANK GUARANTEE UP TO 13/01/2010. P23 COPY OF THE NOTICE DATED 30/11/2009. 3/- -3- WP(C)NO.31474/2010 P24 COPY OF THE REVALIDATED BANK GUARANTEE UP TO 12/07/2010. P25 COPY OF THE LETTER DATED 04/02/2010. P26 COPY OF THE INTIMATION LETTER DATED 02/02/2010. P27 COPY OF THE LETTER DATED 08/02/2010. P28 COPY OF THE LETTER DATED 11/03/2010. P29 COPY OF THE LEWYER NOTICE DATED 22/3/2010. P30 COPY OF THE ORDER IN ORIGINAL NO.65/2007 DATED 08/06/2007. RESPONDENT'S EXHIBITS: R(A) COPY OF THE LETTER DATED 14/12/2005. R(B) COPY OF THE NOTICE DATED 21/6/2006. R(C) COPY OF THE LETTER DATED 24/6/2006 OF THE PETITIONER. R(D) COPY OF THE LETTER DATED 31/10/2006 SENT BY THE DEPARTMENT TO THE PETITIONER. R(E) COPY OF THE LETTER DATED 16/1/2007. R(F) COPY OF THE LETTER DATED 23/1/2007 SENT BY THE PETITIONER. R(G) COPY OF THE LETTER DATED 7/2/2007. R(H) COPY OF THE JOURNAL OF INSURED PARCELS POSTED BY THE DEPARTMENT. /TRUE COPY/ P.A.TO.JUDGE sts P.R.RAMACHANDRA MENON, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P(C) No.31474 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated the 17th day of June, 2011 JUDGMENT The petitioner is challenging Ext.P30 order dated 08/06/2007 (despatched on 14/6/07 by registered post) whereby, the short levy to a tune of Rs.5,36,699/- with interest at the rate of 15% per annum, from the date of actual clearance of the goods till the date of payment, was confirmed. The case of the petitioner is that no prior notice as contemplated under Section 28 was ever served before Ext.P30 order was passed on 08/06/2007 and it was not communicated to the petitioner till 2010. The sequence of events is follows:- 2. The petitioner has imported certain Heavy Melting Steel Scraps from Amman in Jordan and submitted Ext.P1 Bill of Entry. All the goods were cleared under Ext.P2 notification providing for duty relaxation, subject to production of 'End Use Certificate' (for short, 'EU Certificate'), simultaneously, furnishing bank guarantee, which was revalidated in the due course. However, the EU Certificate was not produced and time was sought to be extended. It is the case of the petitioner that the petitioner has revalidated the bank guarantee sought for. It is stated that the petitioner came W.P(C) No.31474 of 2010(H) -2- to know of Ext.P30 order passed by the concerned respondent confirming the short levy only much belatedly, which according to the petitioner is illegal and contrary to the statutory prescription, and hence under challenge. 3. When the matter came up for consideration on 14.10.2010, the following interim order was passed:- “Senior Central Govt. Standing Counsel appearing for the respondent is directed to obtain instructions whether Ext.P30 order was passed after serving show cause notice on the petitioner, whether the order was served on the petitioner immediately after it was passed and if the order was passed after notice and a copy was served, why the petitioner was required to keep the Bank Guarantee active for the subsequent periods by issuing successive communications. Post after three weeks. Issue copy of this order to the Standing Counsel for the respondent.” 4. The respondent has filed a counter affidavit explaining the actual facts and circumstances, asserting that the petitioner has not approached this Court with clean hands. It is stated that Ext.P30 order was passed after giving much opportunity to the petitioner to produce EU certificate which was not availed of and that Ext.P30 order was sent by “registered post” to the petitioner. The respondent points out that the goods were cleared on W.P(C) No.31474 of 2010(H) -3- 29/01/2005, on the undertaking that the petitioner will produce the EU Certificate within 6 months, which was not complied with by the petitioner. Under such circumstances, Ext.R(a) letter dated 14/12/2005 was issued, requiring the petitioner to produce the same. Since the petitioner did not comply with the same, a further notice dated 21/6/2006 was issued demanding the petitioner to repay the short levy amount as per Ext.R(b) and another letter was issued, asking the petitioner to re-validate the bank guarantee already furnished, as the same was to expire on 18/01/2006. In reply to the same, the petitioner, as per Ext.R(c) letter dated 24/06/2006, requested 90 days' time to produce the EU Certificate. Since the petitioner did not respond even after the said period, the Department sent Ext.R(d) letter 31/10/2006 to produce the EU Certificate within 7 days, failing which the bank guarantee was to be invoked. The petitioner was also given a chance for personal hearing on 15/11/2006. As the petitioner did not reply to the said letter, nor did he turn up for personal hearing, under which circumstances a further letter was issued on 16/1/2007, as borne out in Ext.R(e), whereby the petitioner was given a further chance for personal hearing on 25/01/2007. In reply to this, the petitioner, W.P(C) No.31474 of 2010(H) -4- as per Ext.R(f) letter dated 23/1/2007, mentioned about some personal inconvenience and sought for another date for personal hearing. This was granted and the petitioner was intimated of the next hearing date as per Ext.R(g) letter dated 07/2/2007, to which also the petitioner did not respond. It was thereafter, that the proceedings were finalised as per Ext.P30 order dated 08/06/2007, which was sent by registered post to the petitioner on 14/6/2007, as revealed from the relevant proceedings maintained by the respondent vide Ext.R(h). 5. This being the position, there is absolutely no merit or bonafides in the contention raised by the petitioner as to the allegedly loss of opportunity of hearing and the distorted version of the matter in approaching this Court seeking for interference. The respondent has pointed out in paragraph 11 of the counter affidavit, that Ext.P13 produced by the petitioner is the EU Certificate issued to the Commissioner of Customs, Appraising Group 3 & 4, Customs House, Chennai, which obviously was not sent to the respondent. Had the petitioner been in possession of the EU Certificate, there was absolutely no need for necessity or occasion to the petitioner to have sought for time for personal W.P(C) No.31474 of 2010(H) -5- hearing or to have re-validated the bank guarantee in January, 2011. 6. After hearing both sides and going through the materials on records, this Court finds that the petitioner has not reverted the actual facts and figures. This Court finds that the petitioner is not entitled to have any relief in respect of the challenge against Ext.P30 dated 08/06/2007. The writ petition fails and the same is dismissed with cost of Rs.5,000/- (Rupees Five Thousand only) payable to the Kerala High Court Legal Services Committee within one month, failing which, it will be open to the Registrar General to issue necessary recovery certificate to the beneficiary concerned. Sd/- P.R.RAMACHANDRA MENON JUDGE //TRUE COPY// P.A. TO JUDGE krj