IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 2236 of 2008(N)
1. M/S. ACER INDIA PVT. LTD.,
... Petitioner
2. SALORA INTERNATIONAL LIMITED,
Vs
1. THE INTELLIGENCE INSPECTOR,
... Respondent
2. THE ASST. COMMISSIONER,
3. THE ASST. COMMISSIONER,
4. THE HONGKONG AND SHANGHAI BANKING
For Petitioner :SRI.A.KUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :23/01/2008
O R D E R
ANTONY DOMINIC, J.
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W.P(C) No. 2236 OF 2008
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Dated this the 23rd day of January, 2008
JUDGMENT
Exts.P6 and P7 were challenged in WP(C) No.34010/07 and
that writ petition was disposed of by Ext.P10 judgment directing
that on the 1st petitioner furnishing bank guarantee, it being the
owner of the goods, the goods be released to it. It is stated by
the 1st petitioner that in pursuance to Ext.P10 judgment, Ext.P11
bank guarantee, was furnished and the goods were released.
However, in the enquiry that was conducted following the
detention of goods, Ext.P12 notice was issued to the 2nd petitioner
to whom the goods were alleged to have been wrongly sent. In
any case, by the time 2nd petitioner conveyed the fact of the
enquiry to the 1st petitioner and the 1st petitioner made
arrangements for contesting the matter before the 1st respondent,
Ext.P13 order levying penalty of Rs.2,63,620/- on the 2nd petitioner
was already passed. It is stated that on the basis of Ext.P13,
steps are already been taken for invoking Ext.P11 bank guarantee
furnished y the 1st petitioner in pursuance to Ext.P10 judgment
rendered by this Court.
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2. The complaint of the petitioners is that Ext.P13 order has
been passed levying penalty, without notice to the 1st petitioner,
who being the owner of the goods which were detained is affected
by the order now passed. On instructions the learned
Government Pleader confirms that notice was not issued to the 1st
petitioner and contends that notice was issued to the 2nd petitioner.
It is also stated that following Ext.P13, bank guarantee has been
invoked and that a Demand Draft for the penalty amount has been
received from the 4th respondent Bank.
3. From the above submissions that are made by the
learned Government Pleader, it is clear that notice was not issued
to the 1st petitioner. It has been the consistant case of the 1st
petitioner that the goods were wrongly sent to the 2nd petitioner
and even though notice has been given to the 2nd petitioner, the
ultimate liability will fall on the 1st petitioner. This submission is
proved correct since bank guarantee furnished by the 1st petitioner
has been invoked. The action of the 1st respondent in issuing
Ext.P13 order without putting the 1st petitioner on notice or hearing
it, cannot be upheld.
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Therefore, I quash Ext.P13 and direct that the 1st respondent
shall issue notice to the 1st petitioner also and conduct a fresh
enquiry affording an opportunity to the 1st petitioner. Only after
conducting the enquiry as directed above and fresh orders are
passed, the Demand Draft which they have received from the 4th
respondent Bank shall not be encashed.
The Writ Petition is disposed of as above.
ANTONY DOMINIC, JUDGE
btt
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