IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 23RD AUGUST 2011 / 1ST BHADRA 1933 WA.No. 1711 of 2010() --------------------- AGAINST THE JUDGEMENT IN WPC.28679/2010 Dated 22/09/2010 .................... APPELLANT: PETITIONER ------------------------------------ REJI CHERIYAN, THOOVAMBLLIL HOUSE, PATHIYOOR WEST, KAREELAKULANGARA P.O., ALLEPPEY. BY ADV. MR. P.A.AUGUSTIAN MR. V .K.SATHYANATHAN MR. T.R.JAGADEESH MR. T.S.BIJU MS. V.VIJITHA RESPONDENT: RESPONDENT ------------------------- THE COMMISSIONR OF CUSTOMS, CUSTOM HOUSE, WILLINGDON ISLAND, KOCHI - 682 009. ADV. SRI.TOJAN J.VATHIKULAM,SC,C.B. EXCISE THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A. NO. 1711 OF 2010 APPENDIX APPELLANT'S ANNEXURES : ANNEXURE A : TRUE COPY OF THE ORDER - IN - ORIGINAL NO. 148 DATED 13.09.2010 ANNEXURE B : TRUE COPY OF THE LETTER DATED 23.09.2010 /TRUE COPY/ P.A. TO JUDGE J. CHELAMESWAR, C.J. & P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.A. No. 1711 Of 2010 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 23rd day of August, 2011 JUDGMENT J. Chelameswar, C.J. Aggrieved by judgment dated 22.09.2010 in W.P(C) No. 28679 of 2010, the unsuccessful petitioner therein preferred the instant Writ Appeal. By the said judgment, the Writ Petition was dismissed on the ground that the petitioner to effect the alternate remedy by way of statutory appeal. 2. By interim order dated 5th October, 2010, we directed as follows (in paragraph 5): 5. In the circumstances, we deem it appropriate to direct the respondent to release the vehicle in question to the appellant on condition that the appellant pays the entire customs duty payable on the vehicle and also produces a bank guarantee for a sum of Rupees ten lakhs obtained from any nationalised Bank which shall be kept alive until further orders of this Court by taking such appropriate steps necessary from time to time. The appellant is further directed not to ply the vehicle on the roads without securing all the appropriate licences and permits relevant for the purpose. The appellant shall give a further undertaking that W.A No. 1711 of 2010 : 2 : he will produce the vehicle before the respondent as and when demanded, in accordance with law.” 3. The factual background in which the case arose was also explained in some detail in the said order. Subsequent to the above mentioned interim order, the appeal preferred by the appellant herein before the Commissioner of Customs (Appeals) aggrieved by the original order of the Commissioner of Customs dated 13th September, 2010 came to be decided by the appellate order dated 27th January, 2011. The relevant portion of the appellate order reads as follows : “I have carefully gone through the memorandum or appeal, submissions made by the counsel and the judgment in Writ Petition No. 28679 / 2010 and the Interim Order dated 05.10.2010 in Writ Appeal No. 1711/2010 passed by the Hon'ble High Court of Kerala. The appellant had filed the Writ Appeal before the Hon'ble High Court of Kerala and hence the case is sub-judice. As far as the plea of the appellant concerned, it is observed that, the vehicle has already been released on the directions of the Hon'ble High Court of Kerala vide Interim Order in Writ Appeal No. 1711 / 2010 dated 05.10.2010 on the basis of Bond No. 2000022042 dated 13.10.2010 for Rs. 12,06,326/- (Rupees Twelve Lakhs Six thousand three hundred and twenty six only) and Bank Guarantee No. BG 3/2/2010/GN dated 08.10.2010 executed with Canara Bank, Kayankulam Branch thereby W.A No. 1711 of 2010 : 3 : setting aside the order of the lower authority to re-export the imported second hand car vide the Impugned Order- in-original No. 148/10 dated 13.09.2010 It is observed that the appellant had imported the second hand car contravening the provisions of the Foreign Trade PolicY, which resulted in the confiscation of the second hand car, under Sec. 111 (d) of Customs Act, 1962 read with Sec 3 (3) of Foreign Trade (Development and Regulation) Act, 1992. The lower authority has judiciously imposed only a fair amount of Rs. 1,50,000/- (Rupees One lakh Fifty thousand only), as redemption fine. Also the appellant, by importing a used car which was not owned by him for the minimum stipulated period of one year, has committed an offence liable for penal action under the provisions of Section 112 (a) of the Customs Act, 1962. Hence, the lower authority has judiciously imposed a penalty of Rs. 50,000/- which also appears to be reasonably fair. On the basis of the above findings, the following order is passed. ORDER The appeal filed by Shri. Reji Cheriyan, Thaaveelil House, Pathiyoor West, Keerikad P.O., Alleppey is rejected and the order of the lower authority is upheld.” W.A No. 1711 of 2010 : 4 : 4. When the matter is taken up, the above mentioned appellate order is placed before us. The learned counsel for the appellant submitted that, in view of the said order, an appropriate order regarding the 'bank guarantee' for an amount of Rupees Ten lakhs furnished by the appellant, pursuant to interim order dated 5th day of October, 2010 referred to above, be passed. 5. On the other hand, the learned standing counsel for the respondent Adv. Sri. Tojan J. Vathikulam submitted that the above mentioned appellate order is passed on the assumption that this Court vide interim order dated 5th October, 2010 set aside the order of the Commissioner of Customs dated 13th September, 2010, in so far as it directed re-export of the imported car in question and therefore the 'bank guarantee' given pursuant to the interim order may not be permitted to be revoked by the appellant herein. 6. It appears from the appellate order dated 27.01.2011, that the appellate authority is under the wrong impression that by the interim order dated 5th October, 2010, this Court set aside the re-export order referred to therein. It is an error which is required to be corrected in an appropriate proceedings if at all pursued by the Revenue. W.A No. 1711 of 2010 : 5 : In the circumstances, we deem it appropriate to direct that the 'bank guarantee' given, pursuant to the interim order of this Court, by the appellant herein may be revoked by the appellant. It is open to the Revenue, if they are aggrieved by the appellate order of the Commissioner of Customs (Appeals) to pursue the statutory remedies available to them. The Writ Appeal is accordingly disposed of. Sd/ J. CHELAMESWAR, CHIEF JUSTICE Sd/ P. R. RAMACHANDRA MENON, JUDGE kmd