IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1721 of 2004()
1. PARISONS FOOD PVT.LIMITED,
... Petitioner
Vs
1. THE UNION OF INDIA, MINISTRY OF FINANCE
... Respondent
2. DEPUTY COMMISSIONER OF CUSTOMS(IMPORTS),
For Petitioner :SRI.A.M.SHAFFIQUE (SR.)
For Respondent :SRI.P. PARAMESWARAN NAIR,ASG
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :30/09/2008
O R D E R
H.L.Dattu, C.J. & Thomas P.Joseph, J.
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W.A.No.1721 of 2004-C
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Dated, this the 30th September, 2008
JUDGMENT
H.L.Dattu,C.J.
This Writ Appeal is directed against the orders passed by the learned
Single Judge in W.P.(C).No.12208 of 2004, dated 21st July, 2004. By the
impugned order, the learned Single Judge has rejected the writ petition.
(2) In the writ petition filed, the petitioner had called in question the
Customs Notification issued by the Central Government in No.120/2003
dated 1.8.2003, amendment in the notification No.21/2002-Customs, dated
1.3.2002. The said notification had been issued by the Central Government in
exercise of its powers under sub-section (1) of Section 25 of the Customs
Act, 1962. The said notification was questioned, mainly, on the ground, that,
the same is impossible of performance. Therefore, it is arbitrary and opposed
to Articles 14 and 19(1)(g) of the Constitution of India. While questioning
the vires of the notification dated 1.8.2003, the petitioner had also called in
question the demand notices issued by the Deputy Commissioner of Customs
(Import) in No.PD.200204391 / S32/170/2003 AP(I) CUS. dated 20.11.2003,
PD.200204391 / S32/170/2003 AP(I) CUS. dated 10.02.2004 and
PD.200205376 / S32/170/2003 AP(I) CUS. dated 13.02.2004 (Exhibits P3,
P4 and P5).
W.A.No.1721 of 2004
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(3) This Court, while entertaining the Writ Appeal, by its order dated
17.9.2004, had passed the following interim order. It reads as under:
“Writ Appeal is admitted. Mr.John Varghese, Senior
Central Government Standing Counsel accepts notice for the
respondents.
It is stated by the learned counsel for the appellant that
even before filing the writ petition the appellant had paid a sum
of Rs.50 lakhs pursuant to the demands under Exts.P3 to P5
and that there was an unconditional stay in operation during
the pendency of the writ petition in respect of the balance
amount due under Exts.P3 to P5. Having regard to the facts
and circumstances of the case there will be an interim order
staying recovery of the balance amount due under Exts.P3 to
P5 subject to the condition that the appellant shall furnish bank
guarantee for the said amount within one month from today”.
(4) Mr.A.K.Jayasankar, learned counsel appearing for the appellant,
informs us that the appellant herein has complied with the interim orders
passed by this Court dated 17.9.2004.
(5) When the matter is posted for hearing, the learned counsel would
inform us, that, the appellant would not question the vires of the impugned
notification dated 1.8.2003; however, requests this Court to permit the
appellant to question the correctness or otherwise of the demand notices
issued by the Deputy Commissioner of Customs (Import) dated 20.11.2003,
10.02.2004 and 13.02.2004 (Exhibits P3, P4 and P5 respectively) before the
Commissioner of Customs (Appeals) and, further, requests this Court to
W.A.No.1721 of 2004
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direct the Appellate Authority to consider the appeal on merits without
reference to the period of limitation.
(6) In our opinion, the request of the learned counsel for the appellant
appears to be reasonable and if it is granted, it would not cause any prejudice
to the respondents herein.
(7) In the above view of the matter, without going into the merits or
demerits of the case of the appellant before us, we dispose of the appeal as
under:
Order
(i) In so far as legality or otherwise of the Customs Notification
issued by the Central Government in No.120/2003 dated 1.8.2003,
amendment in the notification No.21/2002-Customs, dated 1.3.2002 is
concerned, since it is not argued before us, we will not express any opinion
on that.
(ii) The appellant is permitted to question the correctness or
otherwise of the demand notices issued by the Deputy Commissioner of
Customs (Import) in No.PD.200204391 / S32/170/2003 AP(I) CUS. dated
20.11.2003, PD.200204391 / S32/170/2003 AP(I) CUS. dated 10.02.2004
and PD.200205376 / S32/170/2003 AP(I) CUS. dated 13.02.2004 (Exhibits
P3, P4 and P5) before the first appellate authority, viz., Commissioner of
Customs (Appeals) within a month’s time from today.
W.A.No.1721 of 2004
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(iii) If such appeals are filed within the time granted by this Court, we
direct the Appellate Authority to consider the appeals on merits, without
reference to the period of limitation.
(iv) All the contentions of both the parties are left open.
(v) The appellant shall maintain the Bank Guarantee, which was
directed to be furnished by this Court while entertaining this Writ Appeal, till
the disposal of the appeals by the first appellate authority.
(vi) In view of the orders passed in the Writ Appeal, no orders need
be passed in I.A.28 of 2007 and the same is, accordingly, closed.
Ordered accordingly.
H.L.Dattu
Chief Justice
Thomas P.Joseph
vku/- Judge