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2016 (9) TMI 832 - MADRAS HIGH COURT

2016 (9) TMI 832 - MADRAS HIGH COURT - TMI - Release of detained consignments - confiscation of consignments under Section 111(I) of the Customs Act read with Section 3(3) of the Foreign Trade (Development & Regulation) Act, 1992 - option to pay redemption fine of ₹ 3,50,000/- under section 125 of the Customs Act, 1962 - imposition of penalty of ₹ 25,500/- and ₹ 90,000/- under Section 112(a) of the Customs Act, 1962 - order of the Commissioner of Customs (Appeals) Air, Chennai .....

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should implement the order of the Commissioner of Customs in a true letter and dispute. The petitioner is entitled to get release of the gold, since the long delay in release of the goods would, no doubt, reduce its potency and its market value would deteriorate to the detriment of the petitioner. There is nothing shown on behalf of the respondent to substantiate their claim that necessary steps had been taken to obtain interim order of stay against the order of the authority. - Mere filing .....

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etitioner - petitioner entitled to get release of the goods - consignment to be released on payment of redemption fine and penalty - petition allowed - decided partly in favor of petitioner. - W. P. No. 17965 of 2016 - Dated:- 14-9-2016 - V. Muralidaran, J. For the Petitioner : Mr.A.Ganesh For the Respondent : Mr.V.Sundareswaran ORDER The above writ petition has been filed for the issuance of a writ of Mandamus directing the respondent to release the goods detained in O.S.No.180 of 2015 Air by i .....

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, the case was adjudicated by the Joint Commissioner of Customs, Airport, Customs House, Chennai, and the said Joint Commissioner confiscated the goods valued at ₹ 9,97,224/- under Section 111(I) of the Customs Act read with Section 3(3) of the Foreign Trade (Development & Regulation) Act, 1992. However, the Joint Commissioner has allowed the petitioner to redeem and re-export the goods on payment of redemption fine of ₹ 3,50,000/- and imposed a penalty of ₹ 25,500/- and im .....

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om ₹ 90,000/- to ₹ 50,000/- by order made in C.Cus-I No.398/2015 in C4-I/352/O/2015, dated 24.08.2015. 4. The further case of the petitioner is that though the order of the appeal was delivered to him on 31.08.2015, but the respondent has not implemented the order of the Commissioner of Customs (Appeals) Air, Chennai. The petitioner came to know that there was no revision filed by the respondent before the revisional authority and not obtained any order of the stay against the order .....

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ement the order of the appellate authority dated 24.08.2015. In support of his contention, the learned counsel for the petitioner produced the following decisions:- (i) Union of India vs. Kamalakshi Finance Corporation reported in 1991(55) ELT 433 SC. (ii) W.P(MD)No.24495 of 2011 in M/s Supra Bio Tech vs. The Chief Commissioner of Customs. (iii) W.P.No.9284 of 2006 (Pushpanjali Silks Private Ltd., vs. CC of Customs and another.) (iv) Collector of Customs, Bombay vs. Krishna Sales (P) limited rep .....

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he revisional authority, the same is pending till date. To support his contention, he has given a list of dates for filing revision for the 14 cases including this case. Therefore, the respondent argued before this Court that once he filed a revision against the order of the Commissioner of Customs, the petitioner ought to have approached the revisional authority or he should wait till the order passed by the revisional authority and the writ petition filed by the petitioner is not maintainable. .....

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or hearing and dispose of the case? 8. Once the appellate authority, namely, the Commissioner of Customs has passed the order on 24.08.2015 and without obtaining any order of the stay of the appeal, the respondent should not keep themselves by disobeying the order passed by the appellate authority. 9. Since the Appellate Authority (Commissioner (Appeals)), after taking into consideration the facts and circumstances granted a partial relief to the Petitioner while declining to interfere with the .....

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t in W.P.No.18536 to 18538 of 2016 has passed the following order: 6. As pointed out earlier, in the instant case there is no proof to show that the revision petitions have been taken on file and no proof has been produced to show that notice has been ordered to the petitioner. That apart, the order of the Commissioner was passed on 30.06.2015 and the revisions are said to have been presented only on 16.02.2016/05.03.2016. In any event, as on date, the orders which have been passed by the Commis .....

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fine for re-export and personal penalty and also giving an undertaking to comply with the Order in Original, in the event the Department succeeds in the revision. The above directions shall be complied with by the respondent within a period of three weeks from the date of receipt of a copy of this order. Consequently, connected miscellaneous petitions are closed. No costs. 10.The Hon'ble Apex Court in the case of Union of India vs. Kamalakshi Finance Corporation reported in 1991(55) ELT 433 .....

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hemently emphasised that it is of utmost importance that, in disposing of the quasi-judicial issues before them, revenue officers are bound by the decisions of the appellate authorities. The order of the Appellate Collector is binding on the Assistant Collectors working within his jurisdiction and the order of the Tribunal is binding upon the Assistant Collectors and the Appellate Collectors who function under the jurisdiction of the Tribunal. The Principles of judicial discipline require that t .....

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on of tax laws. 7. The impression or anxiety of the Assistant Collector that, if he accepted the assessee's contention, the department would lose revenue and would also have not remedy to have the matter rectified is also incorrect. Section 35E confers adequate powers on the department in this regard. Under sub-section (1), where the Central Board of Excise and Customs (Direct Taxes) come across any order passed by the Collector of Central Excise with the legality or propriety of which it is .....

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ion or order as may be specified by the Collector of Central Excise in his order and there is a further right of appeal to the department. The position now, therefore, is that, if any order passed by an Assistant Collector or Collector is adverse to the interest of Revenue, the immediately higher administrative authority has the power to have the matter satisfactorily resolved by taking up the issue to the Appellate Collector or the Appellate Tribunal as the case may be. In the light of these am .....

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so as to enable appropriate proceedings being taken under S.353(1) or (2) to keep the interests of the department alive. If the officers view is the correct one, it will not doubt be finally upheld and the Revenue will get the duty, though after some delay which such procedure would entail In this case on hand, there is no stay as on date. Therefore, the above Judgment is squarely applicable to the case on hand. 11. Apart from that, this Court in W.P(MD)No.24495 of 2011 (M/s Supra Bio Tech vs. .....

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te authority, and the pendency of the said appeal, cannot be shown as sufficient grounds for not giving effect to the order of the Commissioner of Customs (Appeals), dated 16.9.2011. Even though the National Centre for Mass Spectrometry, Indian Institute of Chemical Technology, Hyderabad, had by its communication, dated 9.12.2010, had opined that the samples of the goods imported sent to it, did not show any presence of pesticides or Oxymatrine, the refusal of the respondents to release the good .....

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urther appeal. Further, the petitioner cannot be made to suffer due to the detention of the goods in question, which had been imported by the petitioner, under Tariff Heading 1302 1990 of the Customs Tariff Act, 1975, without having proper reasons to do so. 19. The long delay in the release of the goods would, no doubt, reduce its potency, as pointed out by the learned counsel for the petitioner, and its market value would deteriorate to the detriment of the petitioner. The respondents ought to .....

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ly be held to be arbitrary and illegal. It is also noted that an amount of ₹ 12,00,000 had already been paid by the petitioner, as duty, in respect of the goods in question..... 12. In yet another case in W.P.No.9284 of 2006 (Pushpanjali Silks Private Ltd., Vs. CC of Customs and another), this Court has held as follows:- 14. Considering the above submissions made by the learned counsel for the petitioner as well as the Additional Solicitor General, I am of the view that the third responden .....

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m the CESTAT suspending the operation of the said order. It is not the case of the Revenue that the order of the CESTAT has been stayed by the Hon'ble Supreme Court of India. Therefore, I am of the view that the principle laid down by the Apex Court of the land in 1991 (55) E.L.T. 433 has to be applied and the third respondent should follow unreservedly the orders of the CESTAT, Chennai. Therefore, the third respondent is directed to release the Mulberry Raw Silk imported under Bill of Entry .....

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reported in AIR 1994 SC 1239, it was held as follows:- If the authorities are of the opinion that the goods ought not to be released pending the Appeal, the straight forward course for them is to obtain an Order of Stay or other appropriate direction from the Tribunal or the Supreme Court, as the case may be. Without obtaining such an Order they cannot refuse to implement the Order under Appeal. As is well-known, mere filing of an Appeal does not operate as a Stay or suspension of the Order appe .....

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Judgment clearly states that inspite of filing appeal does not operate as stay and therefore, the goods detained should be released as per the appellate order. 14. Further, this Court also in W.P.Nos.18536 to 18538 of 2016 dated 07.06.2016, (Mohamed Ansar Abdul Gafoor vs. The Assistant Commissioner of Customs), has held as follows:- 6. As pointed out earlier, in the instant case there is no proof to show that the revision petitions have been taken on file and no proof has been produced to show t .....

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, these Writ Petitions are disposed of by directing the respondent to release the Gold Jewellery for the purpose of re-export subject to the petitioner complying with the conditions imposed in the order passed by the Commissioner (Appeals-I) i.e., payment of redemption fine for re-export and personal penalty and also giving an undertaking to comply with the Order in Original, in the event the Department succeeds in the revision. The above directions shall be complied with by the respondent withi .....

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Commissioner of Customs in a true letter and dispute. Therefore, in my considered opinion that the petitioner is entitled to get release of the gold, since the long delay in release of the goods would, no doubt, reduce its potency and its market value would deteriorate to the detriment of the petitioner. In this case, there is nothing has been shown on behalf of the respondent to substantiate their claim that necessary steps had been taken to obtain interim order of stay against the order of th .....

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