IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 31005 of 2008(N)
1. PARAYIL ABDU RAHIMAN, PARAYIL HOUSE,
... Petitioner
Vs
1. THE COMMISSIONER OF CUSTOMS,
... Respondent
2. THE CHAIRMAN OF PORT TRUST,
For Petitioner :SRI.P.A.AUGUSTIAN
For Respondent :SRI.THOMAS MATHEW NELLIMOOTTIL,SC,CB EX
The Hon'ble MR. Justice V.GIRI
Dated :16/12/2008
O R D E R
V.GIRI, J.
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W.P.(C) Nos.31005 & 36171 OF 2008
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Dated this the 16th day of December, 2008
JUDGMENT
Since common contentions are raised in these writ
petitions, they have been heard together and are being
disposed of by this common judgment.
2. The petitioner in W.P.(C) No.31005 of 2008
imported a Hummer H2 car of 2003 model. The car was
inspected and it seems that the customs authorities were not
satisfied regarding the model of the vehicle. Adjudication
proceedings were taken up and Ext.P13 order was passed,
rejecting the invoice value of the vehicle and assessing the
same on the basis of the judgment of the adjudicating
authority. Petitioner was called open to remit a fine of Rs.6
Lakhs and penalty of Rs.2 Lakhs, for releasing the vehicle.
3. An appeal was preferred against Ext.P13 order and
the same is pending. In the meanwhile the vehicle is lying in
the open and demurrage is also being incurred unnecessarily,
it is contended. Hence the petitioner prays for a direction for
release of the vehicle.
W.P.(C) 31005 & 36171 of 2008
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4. Insofar as W.P.(C) No.36171 of 2008 is concerned,
petitioner imported a Volkswagen Bettle of 2003 model. Value
of the vehicle assessed in the invoice is Rs.3,53,242/-, but the
adjudicating authority assessed the same at Rs.8,40,902/-.
Differential duty has been directed to be paid apart from fine
and penalty. Petitioner has filed an appeal before the 3rd
respondent against the decision of the adjudicating authority.
He seeks the release of the vehicle in the meanwhile.
5. In my view, since the invoice value has not been
accepted by the customs authorities and the matter is to be
adjudicated upon by the appellate authority under the Act, it
may not be justified to keep the vehicles with the dept. itself
lying in the open. To protect the interest of the revenue it
would only be appropriate that the vehicles are released to the
custody of the petitioners on conditions. I take note of the fact
that there is no dispute regarding the identity of the importer.
There is no case registered against the petitioner for
contravention of any penal provision under the Customs Act.
6. In these circumstances, writ petitions are disposed
of with the following directions :
W.P.(C) 31005 & 36171 of 2008
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(i) Insofar as W.P.(C) No.31005 of 2008 is
concerned, the petitioner shall remit the duty
payable as per the invoice value, viz;
Rs.14,57,712/- along with 50% of the amount
imposed as fine and penalty viz; Rs.3 Lakhs plus
Rs.1 Lakh within one week from today. The
petitioner shall also furnish bank guarantee for
an amount of Rs.22,66,690/- (Twenty two lakhs
sixty six thousand six hundred and ninety only)
(ii) The petitioner shall also deposit with the
Cochin Port the demurrage determined on the
basis of invoice value and shall furnish bank
guarantee for differential amount by way of
demurrage calculated on the basis of the value
assessed by the department.
(iii) The bank guarantee for the amount mentioned
in paragraph (i) shall be furnished in favour of
the Commissioner of Customs, Kochi and shall
be kept alive for a period of one year or till such
time as the appeal and any proceedings
W.P.(C) 31005 & 36171 of 2008
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thereupon pursuant to Ext.P13 is finally
decided. The petitioner shall take steps to
extend the period of validity of the bank
guarantee on a requisition made by the
Customs Department from time to time. The
bank guarantee shall be cancelled only after
completion of the proceedings, arising from
Ext.P13, before the statutory authorities and
subject to the orders to be passed in that regard
by the authority under the Customs Act.
(iv) The bank guarantee for the amount mentioned
in paragraph (ii) shall be furnished in favour of
the competent authority of the Cochin Port
Trust and shall be kept alive for such period as
required by the Port Trust.
(v) Insofar as the petitioner in W.P.(C) No.36171 of
2008 is concerned, he shall deposit an amount
of Rs.5,91,083/- being the duty payable on the
invoice value within one week from today and
he also furnish bank guarantee for the
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differential duty amount viz; Rs.8,35,548/-
drawn in favour of the Commissioner of
Customs, Kochi.
(vi) Petitioner shall also remit an amount of
Rs.1,87,500/- being 50% of the amount payable
as fine and penalty as per Ext.P5 order, drawn
in favour of the Commissioner of Customs,
Kochi.
(vii) Petitioner shall remit with the Cochin Port
Trust demurrage determined on the basis of the
invoice value and shall also furnish a bank
guarantee in favour of the Cochin Port Trust for
the differential amount payable as demurrage,
calculated on the basis of the assessed value.
On satisfaction of the conditions, as mentioned above,
the vehicles shall be released to the petitioners in W.P.(C)
Nos.31005 of 2008 and 36171 of 2008 without further delay.
Subject to the final outcome of the proceedings before
statutory authorities, it is open to the petitioners to institute
appropriate proceedings against the Customs Department for
W.P.(C) 31005 & 36171 of 2008
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recovery of the amounts, collected from them by way of
demurrage, by the Port Trust, provided they are successful in
the proceeding, under the Customs Authorities.
V.GIRI, JUDGE
pac