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2017 Supreme(Cal) 528
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
SUBRATA TALUKDAR, J.
R.K. Exports & Ors. – Petitioners
Versus
The Commissioner of Customs (Port) & Anr. – Respondents
WP. 632 OF 2017
Decided On : 17-11-2017
For the Petitioners: Mr. Jayanta Kr. Mitra, Sr. Adv., Mr. Pranab Kumar Datta, Sr. Adv., Mr. Jaydip Kar, Sr. Adv., Mr. Debabrata Saha Ray, Sr. Adv., Mr. Mainak Bose, Adv., Mr. Shakil, Mohammed Akhter, Adv., Mr. Prasenjit De, Adv.
For the Respondents: Mr. Somnath Ganguli, Adv., Ms. Manasi Mukherjee, Adv., Mr.Kaushik Dey, Adv., Mr. Kaushik Maity, Adv.
The main legal point established in the judgment is that the conditions for provisional release of goods detained/seized under the Customs Act, 1962 lie solely within the domain of the Adjudicating Authority (AA) and cannot be sought at the investigation stage.
Headnote:
Customs Act - Provisional Release - Section 110, Section 110A - The court found that the provisional release of goods detained/seized can only operate at the level of the Adjudicating Authority (AA) as per the relevant provisions of the Customs Act, 1962. The court emphasized that the conditions attached to the provisional release lie solely within the domain of the AA, and not the Investigating Authority (IA). The court refused the prayer for provisional release at the investigation stage, citing the need for the IA to conclude identities/individuals connected to the import exercise before the owner is permitted to take away the goods from the purview of the investigation.
Fact of the Case:
The case involved a partnership firm seeking provisional release of goods detained/seized under the Customs Act, 1962. The firm's representative sought provisional release at the investigation stage, but the court found that the conditions for provisional release lie within the domain of the Adjudicating Authority (AA).
Finding of the Court:
The court found that the conditions for provisional release of goods detained/seized lie solely within the domain of the Adjudicating Authority (AA) and refused the prayer for provisional release at the investigation stage.
Issues: The main issue was whether the provisional release of goods detained/seized under the Customs Act, 1962 could be sought at the investigation stage or if it was solely within the domain of the Adjudicating Authority (AA).
Ratio Decidendi: The court held that the conditions attached to the provisional release of goods detained/seized lie solely within the domain of the Adjudicating Authority (AA) and cannot be sought at the investigation stage.
Final Decision: The court dismissed the prayer for provisional release at the investigation stage and deemed the allegations made in the writ petition to be denied.
1. Both the WPs are taken up for consideration on succeeding dates on the ground that both the WPs involve common questions of facts and law.
2. WP 633 of 2017 (for short WP I) was decided by the earlier order of this Court dated 15th November, 2017 and, dismissed. The decision of this Court was founded on the premise that under the relevant provisions of the Customs Act, 1962 (for short the 1962 Act or the Customs Act), the provisions applicable thereof contemplating a show cause notice connected to the provisional release of goods detained/seized can only operate at the level of the Adjudicating Authority (AA).
3. Therefore, this Court on being satisfied upon consideration of the materials placed, took the view in WP II that the adjudicatory level under the 1962 Act being yet to be reached, a prayer for provisional release of goods at this stage is not sustainable.
4. However, upon being called upon to adjudicate the next Writ Petition, i.e. WP 632 of 2017 (for short WP I), although chronologically earlier to WP II, Mr. Pranab Kumar Datta, Ld. Senior Counsel for the Petitioners took this Court again with re-emphasis on the alleged infringement of the law connected to the present facts. On behalf of the Respondents/Revenue/Customs/Directorate of Revenue Intelligence (for short DRI) Authorities, representation is put in by Mr. Kaushik Dey, Mr. Kaushik Maity and Mr.Somnath Ganguli, Ld. Counsel.
5. On an assessment of the submissions made by the parties, this Court is required to further place on record the following discussion.
6. First, WP I is filed on behalf of a partnership firm by the name of M/s. R. K. Exports (for short R.K.E.) affirmed by one of its partners, Sailendra Singh.
7. Second, the Bill of Entry (BE) is in the name of the Petitioner no. 1/R.K.E. Third, the examination of the goods imported by the Petitioner no. 1 reveal the following:-
“Compulsory Compliance Requirements = 1
Mandatory Compliance Requirements Examination Instruction (CTH) – 94054090 “”””””””. . * (I) SELF BALLASTED LED LAMPS FOR GENERAL SERVICES (II) FIXED GENERAL PURPOSE LED LUMNARIES PROBIHITED W.E.F. 14-8-15 UNREGISTERED REPAIRED/REFURBISHED/SECOND HAND ITEMS SHOULD NOT BE ALLOWED TO BE IMPORTED WITHOUT PRIOR PERMISSION FROM MEITY. CHECK REGSITRATION OF IMPORTER AND GOODS WITH BIS AND SELF DECLARATION ON THE GOODS THAT THEY CONFIRM TO (I) IS 16102 (PARTI) = 2012 & (II) IS 10322 (PART 5/SEC1) = 2012 RESPECTIVELY. SUBSTANDARD GOODS TO BE DEFORMED & DISPOSED OF AS SCRAP IN TERMS OF PARA 3 OF THE ORDER (AUTHORITY) : -*.* ELECTRONICS AND INFORMATION TECHNOLOGY GOODS (REQUIREMENTS FOR COMPULSORY REGISTRATION) ORDER 2012 DT. 7-11-2012 & 7-11-14. .””””””. VERIFY THAT THE RATE OF IGST/GST COMPENSATION CESS HAS BEEN CORRECTLY LEVIED AND EXEMPTION, IF ANY, CORRECTLY CLAIMED”
8. Fourth, from Pg:39 of WP I it transpires that the Petitioner no. 3, Dharmendra Singh and, also a partner of the Petitioner no. 1, authorised one Mr. Manoj Kumar Gupta (MG), to import the items on behalf of the Petitioner no. 1. Such authorization, which is simply notarised on a non-judicial stamp paper, is dated 6th June, 2017 and the stamp paper itself appears to have been purchased on 19th April, 2017 (at Pg: 40 of WP I). From the purchased document of the vendor of the stamp paper as dated 19th April, 2017 bearing the serial number 263/243, the name of the customer is not entered and left blank.
9. Fifth, the goods having been detained/seized in September 2017, notwithstanding the clear provisions in the 1962 Act, the owner of the goods, i.e. the Petitioner no. 1/Partnership Firm represented by either or both the Petitioner nos. 2 and 3/its partners were required to take the necessary steps qua the Revenue/Customs/DRI respondents for claiming the provisional release of the goods u/s 110A of the 1962 Act.
10. Sixth, however, this Court notices that on 23rd October, 2017 the said authorised person, MG, filed a representation before the DRI authority admitting, inter alia, that th
