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Madras High CourtWP/31796/2017disposed of

M/S.Navkar Exim v. The Commissioner Of Customs

2018-01-04Honourable Mr Justice T. S. Sivagnanam3 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 04.01.2018

CORAM

THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM W.P.No.31796 of 2017 M/s.Navkar Exim, rep. by its Karta, Mr.Sanjeev Kumar Jain, #9, Chandrappa Mudali Street, Sowcarpet, Chennai-600 079.

... Petitioner Vs.

1.The Commissioner of Customs, Chennai III Commissionerate, Custom House, No.60, Rajaji Salai, Chennai-600 001.

2.The Deputy Commissioner of Customs (SIIB), Custom House, No.60, Rajaji Salai, Chennai-600 001.

3.The Appraiser of Customs (SIIB), Custom House, No.60, Rajaji Salai, Chennai-600 001.

... Respondents Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Mandamus, directing the respondents herein to release the goods covered by Bill of Entry No.3386891 dated 26.09.2017 provisionally without levy of anti dumping duty without further delay subject to conditions that may imposed by this Court.

For Petitioner :

Mr.S.Murugappan For Respondents :

Mrs.Hema Muralikrishnan, Senior Panel Counsel ******

O R D E R

Heard Mr.S.Murugappan, learned counsel for the petitioner, Mrs.Hema Muralikrishnan, learned Senior Panel Counsel for the respondents and carefully perused the materials placed on record including the parawise remarks furnished to the learned Senior Panel Counsel by the Assistant Commissioner of

Customs (Legal-Sea) vide communication dated 26.12.2017 along with the Annexures.

2.The petitioner is a trader in Soda Ash and has been a regular importer of the said product from Bosnia. In respect of the current consignment, which is subject matter for consideration, the same has been detained and the respondent/Department has not released the same on the ground that the petitioner has to pay Anti- Dumping Duty (ADD) on the ground that the country of export is Croatia, which is an European Union Country.

3.Learned counsel for the petitioner would submit that the petitioner had clarified to the second respondent that the goods are of Bosnia and Herzegovina origin, which is not an European Union Country and only because of lack of port facilities, the shipment has been made through Croatia. Therefore, the question of levying ADD does not arise. 4.In the parawise comments given by the Assistant Commissioner of Customs (Legal-Sea), it is stated that the form of certificate of origin shows that it was issued from Romania, which is in the European Union and therefore, ADD is leviable and it is stated that the ADD for the live consignment is Rs.2,10,501/-. Further, it is stated that there is a proposal to reopen the earlier transaction of levy of ADD. 5.

The petitioner is before this Court seeking for release of the cargo provisionally without levy of ADD. To examine as to whether the petitioner is entitled for such relief, it will be relevant to take note of the Certificate of Origin produced by the petitioner, which is dated 28.08.2017, a copy of which also has been annexed to the parawise comments given by the Assistant Commissioner. The said certificate clearly shows that the Country of Origin is Bosnia and Herzegovina. The certificate, which is sought to be relied on by the respondent/Department to state that the port of shipment is a country falling within the European Union, is the certificate dated 07.09.2017. However, even in the said certificate, the country of origin is Bosnia and Herzegovina.

6.Thus, it is clear that the petitioner has made out a prima facie case for grant of order for provisional release of the cargo and also to protect the interest of the revenue, as the respondents are yet to issue show cause notice and take up the case for adjudication.

7.Accordingly, this writ petition is disposed of by directing the respondent/Department to release the cargo, which is covered under the Bill of Entry No.3368891 dated 26.09.2017, subject to the condition that the petitioner furnishes a bond for the full value and furnishes a bank guarantee to the tune of 25% of the ADD, which is proposed to be levied on the petitioner. On furnishing and executing the bond and bank guarantee, the goods shall forthwith be released. It is open to the respondent/Department to issue show cause notice and proceed with adjudication in accordance with law. No costs. Sd/- Assistant Registrar(CCC) //True Copy// Sub Assistant Registrar abr To 1.The Commissioner of Customs, Chennai III Commissionerate, Custom House, No.60, Rajaji Salai, Chennai-600 001.

2.The Deputy Commissioner of Customs (SIIB), Custom House, No.60, Rajaji Salai, Chennai-600 001.

3.The Appraiser of Customs (SIIB), Custom House, No.60, Rajaji Salai, Chennai-600 001.

+1cc to Mr.S.MURUGAPPAN, Advocate, S.R.No. 730 +1cc to Mrs.HEMA MURALIKRISHNAN, Advocate, S.R.No. 941 W.P.No.31796 of 2017 TR(09/01/2018)