M/S.Jms Exports, v. The Commissioner Of Customs,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.11.2016
CORAM
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM W.P.No.13671 of 2016 & W.M.P.Nos.11960 & 11961 of 2016 M/s.JMS Exports, Rep. by its Proprietor, Shri Arul James, No.246, 7th Street, Gandhi Nagar, Vyasarpadi, Chennai-600 039.
.. Petitioner
Versus
1.The Commissioner of Customs, Chennai II, Commissionerate, Custom House, No.60, Rajaji Salai, Chennai-600 001.
2.The Additional Commissioner of Customs, Group-5A, Commissionerate of Customs-II, Custom House, No.60, Rajaji Salai, Chennai-600 001.
.. Respondents Prayer: This Writ Petition is filed under Article 226 of the Constitution of India, seeking for a Writ of Certiorarified Mandamus to call for the records of the second respondent made in Order in Original No.45505 of 2016, dated 08.03.2016 in F.No.S59/51/2015-Gr.5A, quash the same and further direct the respondents to cause release of 200 nos. of Sony brand LED TV sets, covered under the Bill of Entry No.5901603, dated 24.06.2014, in terms of the orders passed by this Court in W.P.N.5700 of 2015, dated 16.10.2015.
For Petitioner : Mr.B.Satish Sundar For Respondents : Mr.T.Pramodkumar Chopda Senior Panel Counsel
O R D E R
Heard Mr.B.Satish Sundar, learned counsel appearing for the petitioner and Mr.T.Pramodkumar Chopda, learned Senior Panel Counsel appearing for the respondents. This Court perused the materials available on record, including the counter affidavit of the second respondent.
2. The order impugned in this Writ Petition is an orderin-original in and by which, the respondent has seized the gold and absolutely confiscated 200 numbers of Sony brand LED TV sets, apart from imposing penalty under various provisions of the Act.
3. The petitioner had earlier approached this Court and filed Writ Petition in W.P.No.5700 of 2015, seeking for a Writ of Mandamus to direct the second respondent to release the TV sets. The Court, by an order dated 16.10.2015 directed the petitioner to furnish 100% bank guarantee for the duty assessed on the value of the goods and on furnishing the same, the second respondent was directed to release the 7 pallet boxes except boxes 8 and 9. This was owing to the boxes 8 and 9 which contained gold.
4. By way of implementation of the order, the second respondent passed an order dated 18.12.2015, directing the petitioner to furnish 100% bank guarantee for the duty assessed on the value of the goods; directed execution of provisional Bond and directed payment of Customs duty. Apart from the above three conditions, which were as per the direction of the Court, the second respondent directed the petitioner to furnish BIS Certificate in original. Since this condition could not be complied with by the petitioner, the impugned assessment order was passed.
5. The learned counsel for the petitioner submits that even when the bill of entry was filed, the petitioner produced BIS Certificate, dated 13.09.2013, that clearly shows the model numbers of the TV, which have been imported by the petitioner were ordered by Selangor, Malasiya. However, the issue is that the petitioner is not a dealer of the foreign manufacturer nor with the registered importer of the foreign manufacturer nor an Indian representative of the foreign manufacturer.
6. The quantity of TV sets imported is admittedly a larger quantity. Therefore, the larger question would be as to whether the petitioner by placing reliance on the BIS Certificate, dated 13.09.2013, would seek for release of the TV sets. However, this issue is not primarily a question of law, but is the maximum question of fact and law. Therefore, to adjudicate the correctness of the impugned order, necessarily the disputed question of facts have to be gone into and this cannot be done in a Writ Petition, more so, when the petitioner has an alternative remedy of an Appeal as against the impugned order.
7. Hence, for all the above reasons, this Court is not inclined to interfere with the order on the ground that the petitioner has an alternative remedy by way of appeal. It is made clear that this Court has not gone into the merits of the contentions raised by the petitioner nor the defence raised by
the Department in the counter affidavit and the decision is arrived only with regard to the maintainability of the Writ Petition.
8. Accordingly, while rejecting the prayer made by the petitioner and holding that the Writ Petition is not maintainable, liberty is granted to the petitioner to file an Appeal before the Commissioner of Appeals and if an Appeal is filed within a period of 30 days from the date of receipt of a copy of this order, the Commissioner of Appeals shall consider the Appeal, without reference to the limitation. However to comply the pre-deposit conditions, it is made clear that while deciding the Appeal, the Appellate Authority shall not be prejudiced by any of the observations made in this order.
9. In the result, the Writ Petition is dismissed. There is no order as to costs. Consequently, connected miscellaneous petitions are closed.
Sd/- Asst.Registrar (CS ) /true copy/ Sub Asst. Registrar To 1.The Commissioner of Customs, Chennai II, Commissionerate, Custom House, No.60, Rajaji Salai, Chennai-600 001.
2.The Additional Commissioner of Customs, Group-5A, Commissionerate of Customs-II, Custom House, No.60, Rajaji Salai, Chennai-600 001.
+1 cc to Mr.T.Pramod Kumar chopda,advocate,sr.69867 +1 cc to Mr.B.Sathish Sundar,advocate,sr.69708. ca(co) krd 16/12 W.P.No.13671 of 2016 & W.M.P.Nos.11960 & 11961 of 2016