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SCA/4145/2011 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4145 of 2011
=========================================================
KRISHNA
PETROCHEMICALS - Petitioner(s)
Versus
UNION
OF INDIA & 1 - Respondent(s)
=========================================================
Appearance
:
MR
PARESH M DAVE
for
Petitioner(s) : 1,
DS AFF.NOT FILED (N) for Respondent(s) : 1,
MS
AMEE YAJNIK for Respondent(s) :
2
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
and
HONOURABLE
MS JUSTICE SONIA GOKANI 12th May 2011
ORAL
ORDER
(Per :
HONOURABLE MR.JUSTICE AKIL KURESHI)
Heard
learned counsel for the parties for final disposal of the petition.
Petitioner
has imported a consignment of certain quantity of Oil. There is a
disputed about the import duty to be paid on such goods. Department
had classified the goods under Entry No. 15.13 attracting higher rate
of duty as compared to Entry No. 38.23, under which, the petitioner
contends the same ought to have been classified.
The
Order passed by the Adjudicating Authority was carried in appeal by
the petitioner before the Appellate Authority ie., the
Commissioner, who by his Order dated 12th October 2010,
ruled in favour of the petitioner, classifying the goods under CTH
No. 38231900 and directed as under :-
“13. From
the totality of the facts, I have concluded that the impugned goods,
which is essentially composed of triglycerides of fatty acids
and free fatty acids (fatty material), is excluded from
CTH 15132910, and in fact it is entirely excluded from Chapter
15 of the Customs Tariff Act, 1975. From the findings above,
purely based on facts of the instant case, I hold that the
nomenclature of the impugned goods qualify as ‘semi acid oil’ and it
merits classification under CTSH 38231900 CTA, 1975.
14. In
accordance with the above, I set aside the impugned order and hold
that the imported goods merit classification under CTSH 38231900 as
semi acid oil. The appeal is disposed off accordingly.”
Despite
such a clear order, the respondents did not release the goods of the
petitioner. The petitioner wrote letters to the respondents
requesting that the goods be released and that further delay is
causing him heavy demur rage burden. Since, despite such
requests, the respondents did not take any steps, the petitioner has
approached this Court in the present petition praying that direction
be issued to the respondent no.3 to forthwith release the
goods covered under the Bill of Entry No. 665976 dated 16th
December 2009 in terms of the Order-in-Appeal dated 12th
October 2010.
In
response to the notice issued by us, learned advocate Ms. Amee Yagnik
appeared for the respondents. She contended that the Department has
carried the issue in appeal before the Tribunal and the CESTAT is
ceased of the matter. Alongwith the appeal, Department has also filed
an application for stay.
On
28th April 2011, we had permitted the Department to move
the Tribunal for hearing of the stay application. We are informed
that such application is fixed for hearing on 13th June
2011.
In
the facts of the case, we are of the opinion that the goods of the
petitioner should not be allowed to be detained any longer. Firstly,
the order of higher duty demand made by the respondents was set-aside
by the appellate authority vide its Order dated 16th
December 2010. Several months have passed since then and the goods of
the petitioner are lying, incurring heavy demur rage charges.
On certain terms and conditions, therefore, we are of the view that
the the goods of the petitioner be released; of course subject to the
outcome of the appeal pending before the Tribunal.
Counsel
for the petitioner submitted that the petitioner had suffered heavy
demur rage on account of inaction on the part of the
Department. However, we are not inclined to go into this question in
the present petition, leaving it open to the petitioner to raise its
grievance in an appropriate proceedings; as may be advised.
This
petition is, therefore, disposed of with the following directions :-
[1] The goods of the
petitioner, covered under the Bill of Entry No. 665976 dated
16.12.2009, shall be released on the following conditions :-
(a) That the
petitioner has to deposit entire customs duty as per the
classification accepted by the appellate authority in its Order
dated 12th October 2010;
(b) The petitioner
provides immovable security for differential duty ie., the
duty already paid and additional duty demanded by the Adjudicating
Authority;
(c) This arrangement
would be, of course, subject to the final outcome of the
Department’s Appeal which is pending before the Tribunal.
[2] It would be open
to the Department to request the Tribunal to take up the Appeal
for early hearing.
[3] We have expressed
no opinion on the merits of the classification and leave the
entire issue open to be judged by the Tribunal in accordance with
law.
With the above directions, the petition is disposed of.
{Akil Kureshi, J.}
{Ms. Sonia Gokani,
J.}
Prakash*
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