IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC SATURDAY, THE 19TH NOVEMBER 2011 / 28TH KARTHIKA 1933 WP(C).No. 30859 of 2011(F) -------------------------- PETITIONER(S): ---------------------- M/S.ASIAN TERMINALS, DIVISION OF M/S.ROYAL INDIAN HOLDINGS LTD, 24/418,WILLINGTON ISLAND , COCHIN, REP.BY ITS CHAIRMAN, TISSAN J.THACHANKARY BY ADV. SRI.KURIAN GEORGE KANNANTHANAM, SENIOR ADVOCATE SRI.TONY GEORGE KANNANTHANAM SRI.MATHEW K. SIMON RESPONDENT(S): ----------------------- 1. UNION OF INDIA, REP.BY ITS UNDER SECRETAYR, MINSITRY OF FINANCE, DEPARTMENT OF REVENUE , HUDCO VISHALA BUILDING, 6TH FLOOR, BHIKAJI CAMA PALANCE, NEW DELHI 2. THE CENTRAL BOARD OF EXCISE AND CUSTOMS ROOM NO.159A,NORTH BLOCK NEW DELHI-1, REP.BY ITS DIRECTOR 3. THE COMMISSIONER OF CUSTOMS, O/O.TH ECOMMISSIONER OF CUSTOMS, WILLINGTON ISLAND, KOCHI-682009 4. THE ASSISTANT COMMISSIONER OF CUSTOMS, O/O.THE COMMISSIONER OF CUSTOMS, WILLINGTON ISLAND, KOCHI-682009 SRI.P.PARAMESWARAN NAIR, ASG THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.30859/11 APPENDIX PETITIONER'S EXHIBITS EXT.P1:- TRUE COPY OF THE NOTIFICATION DTD 9/11/1995 ISSUED BY THE IST RESPONDENT. EXT.P2:- TRUE COPY OF THE NOTIFICATION DTD 9/3/1996 ISSUED BY THE 3RD RESPONDENT. EXT.P3:- TRUE COPY OF THE BOND DT.16/12/2009 EXECUTED BY THE PETITIONER IN FAVOUR OF THE CUSTOMS DEPARTMENT EXT.P4:- TRUE COPY OF THE COMMUNICATION DTD 01/04/1991 ISSUED BY THE GOVERNMENT OF INDIA EXT.P5:- TRUE COPY OF THE CIRCULAR DTD 17/10/1997 OF -DO- EXT.P6:- TRUE COPY OF THE LETTER DTD 21/1/2002 ISSUED BY THE 4TH RESPONDENT. EXT.P7:- TRUE COPY OF THE LETTER DTD 7/6/2002 TO THE PETITIONER. EXT.P8:- TRUE COPY OF THE ORDER DTD 25/10/2007 ISSUED BY THE IST RESPONDENT. EXT.P9:- TRUE COPY OF THE LETTER DTD 25/7/2008 OF -DO- EXT.P10:- TRUE COPY OF THE LETTER DTD 16/11/2004 BY THE 4TH RESPONDENT EXT.P11:- TRUE COPY OF THE LETTER DTD 20/5/2010 TO THE IST RESPONDENT. EXT.P12:- TRUE COPY OF THE JUDGMENT DTD 5/4/2011 IN WPC.8914/2011 OF THIS HON'BLE COURT. EXT.P13:- TRUE COPY OF THE LETTER DTD 23/4/2011 TO THE 3RD RESPONDENT. EXT.P14:- TRUE COPY OF THE LETTER DTD 9/5/2011 TO THE PETITIONER. EXT.P15:- TRUE COPY OF THE LETTER DTD 16/5/2011 FROM THE PETITIONER. EXT.P16:- TRUE COPY OF THE LETTER DTD 3/6/2011 TO THE PETITIONER. EXT.P17:- TRUE COPY OF THE REPLY DTD 28/6/2011 ALONG WITH STATEMENT FROM THE PETITIONER. EXT.P18:- TRUE COPY OF THE LETTER DTD 8/7/2011. EXT.P18(A):- TRUE COPY OF THE COST RECOVERY WORKING SHEET. EXT.P19:- TRUE COPY OF THE REQUEST DTD 22/8/2011 WPC NO.30859/11 -2- EXT.P20:- TRUE COPY OF THE LETTER DTD 30/8/2011 ISSUED BY THE 3RD RESPONDENT. EXT.P21:- TRUE COPY OF THE STATEMENT DTD 31/3/2011 BY THE PETITIONER. EXT.P22:- TRUE COPY OF THE STATEMENT DTD 12/9/2011 BY THE PETITIONER. EXT.P23:- TRUE COPY OF THE COMMUNICATION DTD 12/9/2011 BY THE PETITIONER. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 30859 OF 2011 ===================== Dated this the 19th day of November, 2011 J U D G M E N T The challenge in the writ petition is against Ext.P23 and to declare that the petitioner is not liable to pay any cost recovery charges from the date of coming into force of the handling of cargo in Customs Areas Regulation, 2009. Petitioner is also seeking consequential reliefs. 2. On an earlier occasion concerning this very issue, petitioner had approached this court by filing WP(C) No. 8914/11. In that writ petition also what was sought for by the petitioner was a consideration of the representation claiming exemption from payment of cost recovery charges. In Ext.P12 judgment, this Court held as follows:- “3. I have considered the submissions made by both sides. As far as the liability of the petitioner to pay `13,95,612/- is concerned, that issue is pending consideration of the Apex Court and therefore the parties will have to await the judgment of the Apex Court. However, as at present according to the respondents, an amount of `47,89,799/- plus interest is due from the petitioner towards the cost recovery charges. Although petitioner is disputing the correctness of this amount, it is the petitioner's liability to pay the actual amount due and only on such payment can the respondents be called upon to consider Ext.P4 request. WPC No. 30859/11 :2 : 4. Having regard to the fact that the amount which is stated to be due is substantial, I feel it is only appropriate that the petitioner should be permitted to discharge the present liability towards cost recovery charges in instalments and on such payment the first respondent should consider Ext.P4 representation as well. 5. Therefore, I dispose of this writ petition with the following directions; 6. The petitioner shall pay the amount presently due with interest in four equal monthly instalments, first of which shall be paid on or before 15.5.11 and the balance instalments shall be paid on or before 15th of every succeeding month. In order to secure payment of remaining instalments, I direct that the petitioner shall, while paying the first instalment, furnish a bank guarantee for the balance amount. On the payment of the first instalment and on furnishing bank guarantee as above, the first respondent shall consider Ext.P4 representation of the petitioner in the light of Ext.P5 recommendation, as expeditiously as possible and at any rate within 2 months thereafter. In order to enable the petitioner to pay the amount and furnish bank guarantee as directed above, it is directed that on furnishing a copy of this judgment, the 3rd respondent will issue to the petitioner a statement indicating the exact liability of the petitioner.” 3. As can be seen from the above, out of the amounts that were stated to be due from the petitioner, this Court had already held that the liability of the petitioner to pay `13,19,612/- was pending consideration of the Apex Court and that the parties will have to await the outcome of the litigation for saddling the WPC No. 30859/11 :3 : petitioner with that liability. However, in so far as the balance amount mentioned in the judgment is concerned, this Court held that the petitioner should pay the same in four equal monthly instalments in the manner as mentioned in para 6 of the judgment. It was directed that, on payment of the first instalment and furnishing bank guarantee for the balance, the representation will be considered. It was also directed that a statement will be issued to the petitioner indicating the exact liability. 4. However, despite having informed of the liability due, apart from disputing the same and paying the amount, which the petitioner quantified by itself, petitioner has not paid the amount demanded by the respondents nor has the petitioner furnished the bank guarantee as directed in the judgment. Therefore, the endeavour of the petitioner was to continue to dispute the quantification and avoid payment. In other words, petitioner has not complied with the directions contained in Ext.P12 judgment. It is the said disobedience of the petitioner to comply with Ext.P12 judgment that has resulted in Ext.P23 communication, which requires the petitioner to remit cost recovery charges for the WPC No. 30859/11 :4 : period upto 30/9/11 and in this writ petition, this communication is sought to be challenged. 5. Having regard to the conduct of the petitioner in not complying with the directions of this Court, I am not satisfied that the petitioner deserves any indulgence from this Court. Writ petition is dismissed. ANTONY DOMINIC, JUDGE Rp