IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 12TH OCTOBER 2009 / 20TH ASWINA 1931 WP(C).No. 26732 of 2009(J) ---------------------------------------- PETITIONER(S): ------------------------ HASSAN ABDUL AZIZ SHAIKH, TATMABAI ZINDAWALI CHAWL, 2ND STREET, ROOM NO.10, GURAISH NAGAR, KURLA, MUMBAI-70. BY ADVS. MR.P.A.AUGUSTIAN, MR.T.R.JAGADEESH, MR.T.S.BIJU. RESPONDENT(S): --------------------------- THE COMMISSIONER OF CUSTOMS, CUSTOM HOUSE, WILLINGTON ISLAND, KOCHI-682 009. BY ADV. MR.JOHN VARGHESE,SC,CEN.BOARD OF EXCISE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.N.RAVINDRAN, J ........................................... WP(C).NO. 26732 OF 2009 ............................................ DATED THIS THE 12TH DAY OF OCTOBER, 2009 JUDGMENT Heard Sri.P.A.Augustian, the learned counsel appearing for the petitioner and Sri John Varghese, the learned senior standing counsel for the Department of Customs and Central Excise. 2. The petitioner imported a car through the Cochin Port in the year 2007. The said vehicle was seized on 19.11.2007 under Section 110 of the Customs Act and kept in the Customs Ware- house. Thereafter proceedings were initiated against the petitioner which resulted in Ext.P8 order being passed by the Commissioner of Customs, Cochin. By the said order, Commissioner of Customs ordered re-export of the Car. He also imposed a fine of Rs.1,50,000/- and a penalty of Rs.75,000/- on the petitioner. The petitioner, challenged the said order in appeal before the Commissioner of Customs (Appeals) by filing Ext.P9 appeal. By Ext.P10 order passed on 24.8.2009, the Commissioner of Customs (Appeals), set aside the order passed by the Commissioner of Customs directing re-export of the Car. Wpc 26732/2009 2 The petitioner was also permitted to redeem the vehicle on payment of a fine of Rs.1,00,000/-. The penalty imposed was reduced from Rs.75,000/- to Rs.40,000/-. The petitioner thereafter moved the first respondent seeking release of the car on payment of the reduced fine, penalty and customs duty. When the said request was not entertained, this writ petition was filed, seeking a direction to the respondents to release the car to him. 3. The petitioner contends that as the appellate authority has set aside the direction to re-export the car and reduced the fine and penalty, he is entitled to obtain delivery of the car on payment of the reduced fine, penalty and also the customs duty applicable. The respondent has filed a statement pointing out that the department proposes to file an appeal canvassing the correctness of Ext.P10 order before the Customs, Excise and Service Tax Appellate Tribunal, hereinafter referred to as the 'Tribunal' for short. It is also stated that the petitioner has also filed an appeal before the Tribunal challenging Ext.P10 order and that the petitioner ought to have moved the Tribunal seeking Wpc 26732/2009 3 release of the car by way of interim custody, instead of moving this court. 4. Under Section 129A of the Customs Act, the respondent has a right to file an appeal before the Tribunal canvassing the correctness of Ext.P10 order whereby, the Appellate Commissioner set aside the order passed by the Commissioner of Customs to re-export the car. If the Tribunal restores Ext.P8, the petitioner cannot obtain delivery of the car. Therefore, in my opinion, the entitlement of the petitioner to obtain release of the car will have to be decided either in appeal which the petitioner has already filed or in the appeal which the respondent proposes to file from Ext.P10. Under Section 129(3) of the Customs Act, the period of limitation prescribed for filing an appeal is three months from the date of receipt of a copy of Ext.P10. Ext.P10 is dated 24.8.2009. It was issued on 28.10.2009. Therefore, the period of limitation for filing the appeal will expire only on 27.11.2009. In such circumstances, it would not be proper for this Court at this stage to direct release of the vehicle to the Wpc 26732/2009 4 petitioner. I accordingly dismiss this writ petition with the observation that it will be open to the petitioner to move the Tribunal seeking the reliefs prayed for in this writ petition. The contentions of both sides on the merits are kept open. P.N.RAVINDRAN, JUDGE lgk