IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 15TH JUNE 2010 / 25TH JYAISTHA 1932 WP(C).No. 17176 of 2010(V) --------------------------------------- PETITIONER: ------------------- A.P.STEEL RE-ROLLING MILL PVT.LTD., VIII/635, PHASE, NIDA, KANJIKODE, PALAKKAD-21, REPRESENTED BY THE AUTHORISED OFFICER, SRI SENTHIL KUMAR.K.R. (MANAGER, FINANCE). BY ADVS. SRI.E.K.NANDAKUMAR, SRI.A.K.JAYASANKAR NAMBIAR, SRI.K.JOHN MATHAI, SRI.P.BENNY THOMAS, SRI.P.GOPINATH MENON. RESPONDENTS: ------------------------ 1. THE COMMISSIONER OF CUSTOMS, CUSTOMS HOUSE, KOCHI-682 009. 2. THE ADDITIONAL COMMISSIONER OF CUSTOMS, CUSTOMS HOUSE, KOCHI-682 009. 3. THE ASSISTANT COMMISSIONER OF CUSTOMS, (IMPORTS) CUSTOMS HOUSE, KOCHI-682 009. R1 TO R3 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,S.C. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 17176 of 2010 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of June, 2010 J U D G M E N T The petitioner imported a consignment of 'heavy melting scarp' under the Customs Tariff Head (CTH) 72044900 of the Customs Tariff Act. The respondents took the stand that the consignment is not heavy melting scrap but are 'channels' of different length classifiable under CTH 73089010 of the Customs Tariff Act. An adjudication order has been passed demanding duty from the petitioner under CTH 73089010. Petitioner has filed an appeal before the appellate authority. Petitioner seeks a direction to the respondents to permit the petitioner to clear the goods pending consideration of the appeal. Petitioner submits that presently the Commissioner (Appeals), who is the appellate authority is not sitting and therefore the petitioner is not in a position to move the appellate authority for interim orders. It is under the above W.P.(C)No. 17176 of 2010 -2- circumstances the petitioner has filed the writ petition seeking the following reliefs. a) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to release the goods imported by the petitioner on such terms and conditions, which this Hon'ble Court may deem appropriate to impose; b) declare that the petitioner is entitled to release of the goods imported by it, pending disposal of the statutory appeal preferred by it. 2. I have heard the Senior Central Government Standing Counsel for Board of Customs and Excise. He would submit that as condition for release of the goods the petitioner may be directed to pay the duty demanded. 3. I have considered the rival contentions in detail. I am of opinion that, there is an arguable question of law to be decided in the appeal. That being so, the petitioner is entitled to clear the goods on appropriate conditions. Accordingly the writ petition is disposed of with the following directions: Pending disposal of the appeal, the respondents shall permit the petitioner to clear W.P.(C)No. 17176 of 2010 -3- the goods on payment of ½ duty demanded and furnishing bank guarantee for the balance. Demand for redemption fine and penalty would stand straight until orders are passed by the appellate authority. The petitioner shall further execute a bond as provided under Section 143 of the Customs Act to pay the duty, fine and penalty as per orders in appeal. S. SIRI JAGAN JUDGE shg/