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TMI Blog2009 (10) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar Sanjay Kumar v. Commissioner of Customs and another' and Civil Writ Petition No. 1 of 2007 titled as 'M/s Manoj Kumar Sanjay Kumar v. Additional Director General (Revenue Intelligence) and another' will be decided together. 6. Whether an importer, who is alleged to be guilty of mis-declaration of description of goods and under-valuing the invoices, can invoke extraordinary jurisdiction of this Court by filing a writ petition with a prayer that the authorities be directed to reimburse the cost of detention and demurrage charges during the pendency of proceedings before the appropriate authority, which has issued a show-cause-notice for imposing duty, penalty and confiscation of goods, especially when goods have been provisionally released, is a question which has been raised in the present writ petition. 7. Petitioner firm, a proprietorship concern, is engaged in the business of importing mixed fatty acid and mixed acid oil from Malaysia. According to the petitioner, the product in question is a bi-product of oleo chemical plant and from last one year, petitioner has been active in import of the product. This writ petition was filed with a prayer that a writ in the nature o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e have came to know the said containers have been stopped ICD TKD for examination. As per Invoices, the value of the consignment has been declared at USD 185 of Mixed Acid Oil and USD 210 for Mixed Fatty Acid but now market value of Mixed Acid Oil is USD 340 and Mixed Fatty Acid is USD 420. We are ready to pay duty on this value, we don't want any show cause notice for this. We are incurring huge demurrage charges, clearing may be expedited." 9. The petitioner has relied upon section 17 of the Act and has stated that it was incumbent upon the concerned officer to examine, test and assess the duty without any undue delay. The petitioner has urged that if section 17 is read in conjunction with section 47 of the Act. goods being imported were required for home consumption, an order permitting clearance of the goods ought to have been passed immediately, as examination of the goods was carried and sample was drawn, especially when no order regarding detention of seizure of goods was passed by the competent officer. 10. The case set out by the petitioner is that this Court had earlier directed the respondents to prescribe the procedure for clearance of goods expeditiously, so that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice issued in this regard and the imported item was a health hazard under the PFA Act. The information so received was forwarded to the Commissioner of Customs, ICD Tughlakabad, New Delhi on 13th October, 2006. In the information, it was suggested that the sample of goods be taken and same be got tested from Port Health Authorities and other Govt./reputed authorities, including Sri Ram Institute of Science and Technology, New Delhi. The Department had issued an alert and in pursuance thereof, Customs authorities had drawn the samples. The panchnama was drawn at the spot on 22nd November, 2006 and on 23rd November, 2006, Manoj Kumar, proprietor of the petitioner firm made a voluntary statement under Section 108 of the Act and admitted that the firm had imported Palm Fatty Acid Distillate by mis-declaring it as Mixed Fatty Acid and similarly imported Mixed Acid Oil which was a product of Crude Palm Oil and was under-valued. The petitioner used to submit under-valued invoices, showing less value. 12. Case of the Department is that Manoj Kumar, proprietor of the petitioner firm had volunteered to deposit the duty evaded by him and submitted demand draft of Rs. 11,32,385/- towards par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its of the claims and the counter-claims made by the parties to the writ petition. Suffice it to say, a show cause notice has been served upon the petitioner firm. The firm has got ample opportunity to prove its innocence before the concerned authorities. There is inbuilt mechanism under the Act for redressal of the grievance of the petitioner firm. In case petitioner fails to convince the concerned authorities, it has legal remedy to prove its point. There is no bar to the petitioner to urge before the authorities that the firm has suffered losses by paying demurrage and detention charges and it should be compensated. 18. The view formulated by us is in consonance with the observations made by Hon'ble Apex Court in Silbans International v. Collector of Customs - 2002 (146) E.L.T. 495 (S.C.). Their Lordships held as under: "In our opinion the High Court has rightly held that the writ petition filed by the appellant seeking the relief in respect of grant of detention certificate was not maintainable in the facts and circumstances of this case especially when the appellant has already cleared the goods from the warehouse by paying the demurrage charges. The High Court was also righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue (Central Board of Excise and Customs) for expeditious clearance of imported cargo, where testing of sample is necessary before clearance. The official present in the Court informed that the delay takes place on account of shortage of storage space, shortage of equipment in the laboratory and shortage of manpower. An assurance was also given that deficiencies will be monitored and necessary remedial measures will be taken. The Department has submitted various status reports. In the affidavit dated 18th January, 2007, it was submitted that for upgradation of Central Revenue Chemical Laboratories and for purchase of necessary equipment and for testing of various samples, required for different commodities, a modernization programme has been chalked out and the Ministry of Finance has granted sanction of Rs. 3.57 crores and the Department, to meet the shortage of manpower, had decided to fill up the vacancies. On 12th May, 2009, in the status report submitted in the form of affidavit, the Deputy Director (Revenue Intelligence), New Delhi submitted that commercial bids received for purchase of equipment have been scrutinized and a meeting of the Technical Evaluation Committee has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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