IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 WP(C).No. 26021 of 2009(W) -------------------------- PETITIONER: --------------- KHALIL THAKUR, MANAGING PARTNER, M/S. KOLEKAR BROTHERS, ROOM NO.06, YUSUF BUILDING, NAWA NAGAR, DOCKYARD ROAD, MAZGAON, MUMBAI-400 010. BY ADV. SRI.P.V.JAYACHANDRAN SRI.M.S.SAJEEV KUMAR RESPONDENT: --------------- COMMISSIONER OF CUSTOMS, OFFICE OF THE COMMISSIONER OF CUSTOMS, CUSTOMS HOUSE, COCHIN, ERNAKULAM. ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,SC,CB EX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 26021 OF 2009 -------------------------- Dated this the 7th day of October, 2009 J U D G M E N T Heard Sri. P.V.Jayachandaran, the learned counsel appearing for the petitioner and Sri. Thomas Mathew Nellimoottil, the learned Standing Counsel appearing for the Central Excise and Customs Department. 2. The petitioner is the managing partner of a firm which imported fluorescent tubes and batteries through the Cochin Port. Exts.P1 and P2 are the bills of entries in relation to the said goods. Since the value of the goods thus imported by the firm was wrongly declared and the department of customs suspected that the goods have been under valued, steps were initiated against the importer/petitioner under Section 124 of the Customs Act, 1962. Ext.P5 show cause notice was thereupon issued calling upon the petitioner to show cause why the value declared by the importer/petitioner should not be rejected and the value re-determined as stated therein. The importer/petitioner was also asked to show cause why penalty should not be imposed under Section 112(a) of the Customs Act, 1960. The importer firm submitted Ext.P4 application. They also moved the authorities, seeking provisional release of the goods imported. The department thereupon took the stand that as the show cause notice has already been issued, the request for provisional release of the imported W.P.(C) No. 26021/09 2 goods cannot be considered. This writ petition was thereupon filed seeking the following reliefs: “(A) Issue a writ in the nature of mandamus or appropriate writs, directions or orders directing the respondent to release provisionally the consignment imported as per Ext.P1 and Ext.P2 to the petitioner in terms with Section 110 A of the Customs Act, 1962 and Regulation 2 of the Customs (Provisional Release Duty Assessment) Regulations 1963 within a time limit to be fixed by this Hon'ble Court. (B) Direct the respondent to finalise the customs duty in respect of the consignment imported as per Ext.P1 and Ext.P2 within a time limit.” 3. When this writ petition came up for hearing on 16.9.2009, the learned standing counsel appearing for the respondents was requested to ascertain and submit whether the goods can be provisionally released on terms. Today, when this writ petition came up for further hearing, the learned standing counsel for the respondent submitted that as per Ext.P5 show cause notice the tentative assessable value of the imported goods has been fixed at Rs.51,71,200/-, the differential duty payable for the goods W.P.(C) No. 26021/09 3 is Rs.15,57,372/- and that the possible amount of fine and penalty that can be imposed is Rs.20,68,480/-. The learned standing counsel also submitted that as the goods were under valued, the goods are liable to be confiscated and that if the importer furnishes a bond for the sum of Rs.51,71,200/-, which is the tentative value assessed by the department for the imported goods, and furnishes a bank guarantee for the sum of Rs.36,25,852/- towards differential duty and the possible amount of fine and penalty, the goods can be provisionally released to the petitioner. The learned counsel appearing for the petitioner/importer is willing to abide by the said conditions. He submits that the writ petition may be disposed of with a direction to the respondents to release the goods on the petitioner complying with the conditions stated above. I accordingly dispose of this writ petition with a direction that in the event of the petitioner executing a simple bond undertaking to pay the sum of Rs.51,71,200/- in lieu of confiscation, in the event of the adjudicating authority ordering confiscation of the goods, and also submitting a bank guarantee for the sum of Rs.36,25,852/- drawn in favour of Commissioner of Customs, Kochi, the respondent shall release the goods presently detained by him and covered by Exts.P1 and P2 bills of entries to the petitioner/importer. The goods shall be released within two days from the date on which the petitioner complies with the aforesaid conditions. The W.P.(C) No. 26021/09 4 contentions of both sides on the merits are kept open. I also direct the respondent to finalise the proceedings initiated by him as per Ext.P5 show cause notice and pass orders thereon after notice to and affording the petitioner a reasonable opportunity of being heard, within three months from today. The petitioner shall co-operate with the enquiry. If the respondent is of the opinion that the petitioner is not co-operating with the enquiry, it will be open to the respondent to move this Court seeking enlargement of time. I also direct that the bank guarantee and the bond shall not be enforced for a period of two weeks after orders are passed pursuant to Ext.P5 in order to enable the petitioner to move the appellate authority and seek interim orders, if the importer is aggrieved by the order passed by the respondent. P.N.RAVINDRAN, JUDGE vps