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. 26358 of 2009(L) -------------------------- PETITIONER: --------------- EBRAHIM EBRAHIM MAMMU, VAHIDA MANZIL, CHOUKI, AZAD NAGAR, KODLU POST, KASARAGOD DISTRICT-671124. BY ADV. SRI.P.A.AUGUSTIAN SRI.T.R.JAGADEESH SRI.T.S.BIJU RESPONDENT: --------------- THE COMMISSIONER OF CUSTOMS, CUSTOMS HOUSE, WILLINGTON ISLAND, KOCHI-682 009. ADV. SRI.ABRAHAM THOMAS,SC,CENTRAL BOARD-EXC FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 26358/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1. A COPY OF THE JUDGMENT 11/01/2008 OF W.P.(C) No. 37307 OF 2007 EXT.P2. A COPY OF THE JUDGMENT DATED 05/02/08 IN W.A.NO.182/2008 EXT.P3. A COPY OF THE ORDER IN ORIGINAL NO.37/09 DATED 06/07/2009 EXT.P4. A COPY OF THE ORDER IN APPEAL NO.55/09 DATED 21.08.09 EXT.P5. A COPY OF THE LETTER DATED 25/08/09 EXT.P6. A COPY OF THE JUDGMENT HON'BLE HIGH COURT, AP IN W.P.(C) No. 24180 OF 2008 DT. 27.11.08 PA TO JUDGE TRUE COPY P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 26358 OF 2009 -------------------------- Dated this the 12th day of October, 2009 J U D G M E N T Heard the learned counsel appearing on both sides. 2. The petitioner imported a car through the Cochin Port. Thereupon, proceedings were initiated against him which culminated in Ext.P3 order passed by the Joint Commissioner of Customs. By the said order, the Joint Commissioner directed re-export of the car. She also imposed a fine of Rs.4,00,000/- and a penalty of Rs.1,00,000. The petitioner filed an appeal before the Commissioner of Customs (Appeals). By Ext.P4 order passed on 21.8.2009, the Commissioner of Customs (Appeals) set aside the direction to re-export the car. He also reduced the fine from Rs.4,00,000/- to Rs.1,50,000/- and the penalty from 1,00,000/- to Rs.50,000/-. In this writ petition, the petitioner seeks a direction to the respondent to comply with the appellate order evidenced by Ext.P4 and to release the car to him. The petitioner submits that he is not desirous of challenging Ext.P4 and will abide by the conditions stipulated therein. 3. Sri. Abraham Thomas, the learned standing counsel appearing for the respondent submits that the department proposes to file an appeal challenging Ext.P4 before the Customs, Excise and Service Tax Appellate Tribunal that the period of limitation prescribed for filing an appeal is three W.P.(C) No. 26358/09 2 months from the date of communication of Ext.P4, which will expire only in the last week of November 2009 and therefore the petitioner cannot seek implementation of Ext.P4. 4. I have considered the submissions made at the Bar by the learned counsel appearing on either side. In view of the fact that the department has got the right to file an appeal before the Customs, Excise and Service Tax Appellate Tribunal canvassing the correctness of Ext.P4 order, I am of the opinion that the petitioner cannot now seek a direction to the respondent to comply with the direction in Ext.P4. The petitioner can seek such compliance only after the period of limitation prescribed for filing an appeal expires. However in the event of the respondent filing an appeal before the Customs, Excise and Service Tax Appellate Tribunal, the petitioner can move the Tribunal seeking release of the vehicle on terms. In my opinion, at this stage the petitioner cannot seek implementation of Ext.P4. The writ petition is accordingly closed reserving liberty with the petitioner to move the Tribunal seeking release of the car or this Court afresh, if no appeal is filed within the period of limitation prescribed under Section 129A of the Customs Act. P.N.RAVINDRAN, JUDGE vps W.P.(C) No. 26358/09 3