Provisional release of goods directed on payment of enhanced customs duty

BE office Automation Product (P) Ltd Vs Commissioner of Customs (Madras High Court)

Madras High Court directed provisional release of goods on the payment of enhanced customs duty. Further, directed that prayer for waiver of demurrage be addressed to appropriate respondent.

Facts- The petitioner seeks a certiorarified mandamus calling for and quashing order dated 17.08.2022 passed by the Additional Commissioner of Customs / R2. It consequentially seeks a direction to R2 to forthwith provisionally release used Multifunction Digital Print and Copying Machines.

The petitioner relies on the judgment of the Hon’ble Supreme Court in the case of Delhi Photocopiers vs the Commissioner of Customs. The judgement of the Hon’ble Supreme Court dealt with a challenge by the respondents to orders of this Court whereunder directions had been given for provisionally release goods similar to the goods in question, on terms, and complete the process of adjudication within a fixed time frame.

Conclusion- The petitioner confirms categorically that enhanced duty will be remitted. He makes a prayer for waiver of demurrage, which may be addressed to the appropriate respondent for consideration in accordance with law and applicable. The impugned order is set aside and the goods shall be released within a period of two weeks from today on payment of enhanced duty.

FULL TEXT OF THE JUDGMENT/ORDER OF MADRAS HIGH COURT

The petitioner seeks a certiorified mandamus calling for and quashing  order dated 17.08.2022 passed by the Additional Commissioner of Customs / R2. It consequentially seeks a direction to R2 to forthwith provisionally release used Multifunction Digital Print and Copying Machines in BE Nos. 8286002/02.10.18; 8467841/15.10.18, 7884546/03.09.18 and 7917595/05.09.18 (MFDs / goods in question).

2. The petitioner relies on the judgment of the Hon’ble Supreme  Court in the case of Delhi Photocopiers v the Commissioner of Customs dated 11.08.2021 in S.L.P.(c) No. 7565 of 2021.

3. Though a counter has been filed by the respondents ting to the averments in the writ affidavit, learned Standing Counsel would point out that there has been a shift in the legal position and pre and post 17.09.2021. Prior to 17.09.2021, import of goods in question was ‘restricted’ whereas post 17.09.2021, such imposition stands prohibited. The judgment of the Hon’ble Supreme Court in S.L.P.(C) No. 7565 of 2020 dealt with a challenge by the respondents to orders of this Court whereunder directions had been given for provisionally release goods similar to the goods in question, on terms, and complete the process of adjudication within a fixed time frame. In that context, the Hon’ble Court directs provisional release referring to several other orders passed by the Hon’ble Court along similar lines. The order extracted below:-

“We have heard the learned senior counsel appearing for the petitioner(s) and Mr. N. Venkataraman, learned Additional Solicitor General appearing for the respondent(s) at length.

On 05.07.2021, this Court had issued notice in these matters. Despite the fact that the matter was pending before this Court, the Department went ahead and confiscated the goods which are the subject matter of these petitions on 17.07.2021. Mr. N. Venkataraman, learned ASG, realizing the difficulty in his way, has 3 asked the Department to stay its hands so far as the confiscation is concerned. We see no reason to differ from a number of orders that have been passed by this Court in the past for provisional release of goods. However, it has been pointed out to us that at least on and from 01.04.2020, the goods, according to the Department, are clearly prohibited goods and on and from this date, unless an order is made under Section 125, the goods must stand confiscated.

We stay the confiscation of these goods. The Notification dated 01.04.2020 is the subject matter of controversy before this Court, particularly in view of a subsequent Notification dated 18.03.2021 that has been pointed out by Mr. Arvind Datar, learned senior counsel. We, therefore, allow the goods involved in these petitions, to be provisionally released on the same terms that have been indicated in all the other cases. The order dated 18.09.2020 may, in particular, be looked at for this purpose.

In view of above, the Special Leave Petitions are disposed of.

Pending interlocutory application(s), if any, is/are disposed of.”

4. In light of the aforesaid judgment, learned Standing Counsel does not very seriously object to this Court directing provisional release of the goods in question. Needless to say, a final view will be taken based on the adjudication proceedings.

5. Learned counsel for the petitioner confirms categorically that enhanced duty will be remitted. He makes a prayer for waiver of demurrage, which may be addressed to the appropriate respondent for consideration in accordance with law and applicable

6 .The impugned order is set aside and the goods shall be sed within a period of two weeks from today on payment of enhanced duty.

7. Writ petition stands disposed with above directions. No costs. Connected miscellaneous petitions are closed.