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TMI Blog2009 (2) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Act, 1962 read with Section 11 of the Central Excise Act, 1944, directing that any goods belonging to the writ petitioner as would pass through the Customs House may be sold under provision of Section 150 of the Customs Act, 1962 read with Section 11 of the Central Excise Act, 1944 and the amount stated in the demand should be deducted from the sale proceeds. So far as the other relief in the writ praying injunction order restraining recovery of the amount of duty or interest in terms of the demand notice dated 15th June, 1998, learned trial Judge discussed at length about filing of the several writ petitions earlier, the factum of preference of appeal without pre-deposit of the demand and different orders of the High Court, allowing the writ petitioner to deposit 25 per cent of the demand as a condition precedent of maintainability of the appeal etc. and thereby rejected the prayer. Impugned judgment under appeal reads such: "In this writ petition the order dated 16th March, 2001 contained in Annexure "P-21" has since been challenged. It is contended that the petitioner was not aware of this order which is the internal memo of the respondent authority. It was only disclos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Subject matter in any of the earlier writ petitions. Nor it is the subject matter before the CEGAT. This gives rise to an independent cause of action. Therefore, the writ petition is very much maintainable. After having heard the learned counsel for the parties it appears that the writ petitioner had earlier preferred an appeal against the demand dated 18th December, 1998 which is pending. Section 35 of the Customs Act, 1962 requires a pre-deposit before the appeal is taken up for hearing. The petitioner had prayed for waiver of the amount under Section 35(f). By an order dated 24th March, 2000 the stay application was allowed and the petitioner was permitted to deposit Rs.5 crores. The petitioner moved an application for modification before the CEGAT. By an order dated 5th July, 2000 the said application for modification was dismissed directing the pre-deposit by 15th September, 2000. Against these orders writ petition no.2420 of 2000 was moved before this Court. On 18th September, 2000 when this Court had directed by an ad-interim order to deposit 25% of the duty within four weeks and it secured another 25% of the duty by way of bank guarantee, together with the default ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incipal cause of action, which arose out of the demand dated 18th December, 1998 and the question of pre-deposit in connection with the appeal before the CEGAT. Cause of action is not a single action. It is a bundle of facts. After interim order was granted for securing 50% of the duty in respect of the pre-deposit, until and unless there is an order of stay, it is open to the custom authority to proceed to realise the dues. It is not contended that the petitioner had deposited 25% and furnished the bank guarantee for 25% of the duty and the CEGAT has stayed the realisation. Therefore, so long the realisation is not stayed, it is open to the Custom Authority to proceed to realise the said amount through any mode of realisation as is permissible in law. In fact on 16th March, 2001 an order being Annexure "P-12" was issued for the purpose of realisation of the demand which has not been stayed. Therefore, it cannot be said that issuance of the order dated 16th March, 2001 is an independent order independent of the cause of action arising out of the demand dated 18th December, 1998. It is a follow up action passed in furtherance of the said demand dated 18th December, 1998, reali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Plus Surety by binding themselves and their heirs, successors, executors and/or administrators accepting a liability to pay Rs. 10 crores to the President of India on the conditions stipulated thereto. The relevant portion of the bond reads such: "KNOW ALL MEN BY THESE PRESENTS and assigns that We M/s. ANMTARCTICA GRAPHICS LIMITED, Sector-I, Falta Export Processing Zone, carrying on business hereinafter called "the importers" (which expression shall mean and include our successors and our respective heirs, executors and administrators) and we M/S. PRUDENTIAL PLUS, (hereinafter referred to as "the Surety") which expression shall unless excluded by or repugnant to the context shall include our successors and assigns are jointly and severally held and firmly bound ourselves our successors and heirs executors and administrators unto the President of India(hereinafter called the Government) which expression shall unless repugnant to the context and meaning thereof will mean and include the successors and assigns in sum of Rs.10,00,00,000/-(Rupees Ten Crores only). for which payment well and truly to be made we bind ourselves and each of us and each of our heirs, executors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th June, 1998, a demand notice under Section 28(3)(ii) read with Section 72(d) of the Customs Act, 1962 and Section 11A(3)(ii)(b) of the Central Excise Act, 1944 amounting to Rs. 63886466/- being duty not levied together with interest at the rate of 18 per cent from 12th January, 1996 till the date of payment of the duty was served to the petitioner. Petitioner submitted his representation against this notice. In the demand notice, the authority alleged that petitioner received insurance claim for the insured value of the capital goods, raw materials etc. Petitioner took several grounds to assail this notice including limitation prescribed under Section 28 of the Customs Act, 1962, as also under Section 11A of the Central Excise Act, 1944. The said demand notice stood confirmed by the order dated 18th December, 1988. Challenging this, writ petitioner-appellant preferred an appeal to the Commissioner of Custom (Appeal), who dismissed his appeal by the order dated 20th August, 1999. Challenging this order, another appeal was preferred to the Tribunal, namely, Customs, Excise and Gold (Control) Appellate Tribunal, hereinafter for brevity referred to as "CEGAT", and petitioner pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Order No. 3-242/Cal/2000, passed by the Customs Excise Gold (Control) Appellate Tribunal, Eastern Branch, there shall be an interim direction staying operation of the said order and/or for disposal of the appeal filed by the writ petitioner and pending before the CEGAT subject, however, to the following conditions; (i) The petitioner shall deposit 25% of the impugned duty which is the subject matter of the appeal before the Tribunal within a period of 4 (four) weeks from date. (ii) The petitioner shall furnish a Bank Guarantee for a further sum of 25% of the impugned duty within the said period of 4 (Four) weeks from date hereof. In default of either condition, the interim stay hereby granted shall stand vacated. Let the respondents file their affidavit-in-opposition by 02.11.2000, affidavit-in-reply by 3 days thereafter and this matter will appear in the list as "Motion (adjourned)" on 10.11.2000. All parties are to act on a xerox signed copy of this order on the usual undertaking." A mandamus appeal was led by the present appellant against the said order of M.H.S. Ansari,J. (as His Lordship then was), which stood dismissed on 28th September, 2000. Petitioner did n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke it clear that this amount shall be received in terms of the Court's order and will have no bearing so far as his personal account is concerned. Mr. Jayanta Banerjee shall hold this amount in a separate Fixed Deposit Account to be opened in the Standard Chatered Grindlays Bank, Church Lane Branch, Calcutta, upon intimation to all the parties concerned. The writ petition, which is pending, is to be heard on the Wednesday week i.e. on 11.4.2001 and the matter to appear in the list for hearing. This order is passed without prejudice to the rights and contentions of the parties including the pending proceedings. As the affidavit-in-opposition has not been filed, the allegation contained in the writ petition are not admitted. The Special Officer, concerned bank and all parties are to act on a xeroxed signed copy of this dictated order upon usual undertaking." Petitioner was allowed to export goods in terms of the said order. The writ application in which the M.H.S. Ansari,J. (as His Lordship then was) being W.P. no. 2420 of 2000 passed interim order on 18th September, 2000, was finally disposed of by P.C. Ghose,J. by order dated 29th June, 2001, confirming said interim order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s prayed the following reliefs in the present writ application W.P. No. 441 of 2002, the judgment of which is challenged in this appeal: "(a) A writ of and/or in the nature of Mandamus directing and commanding the respondents and each of them to refrain from giving effect or further effect and/or acting on the basis of impugned instructions dated March 16, 2001 and from taking any further step or steps for recovery of any amount of duty or interest covered by the purported Demand Notice dated June 15, 1998 any further and in any manner whatsoever. (b) A writ of and/or in the nature of Certiorari directing and commanding the respondents and each of them to transmit the records relating to the case after certifying the same so that on perusal thereof, the Hon'ble Court may be pleased to quash and/or set aside the impugned action of the respondents with consequential relief to the petitioner on the basis thereof. (c) Rule NISI in terms of prayers (a) and (b) above. (d) Injunction restraining the respondents and each of them their subordinates and agents from giving effect or further effect and/or acting on the basis of the impugned instruction dated March 16, 2001 forming ann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (g) Costs of and incidental to this application be paid by the respondents to the petitioner; (h) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may seem fit and proper." We called for the records of all earlier writ proceedings moved by the present appellant. On perusal of the same, it appears to the Court that the notice dated 16th March, 2001, as challenged in the present writ application W.P. No. 441 of 2002 is not something new but it is continuation and follow up action of another notice dated 16th March, 2001, which lead to pass a manuscript order dated 17th March, 2001, restraining processing of any goods through the Customs House without order of the Deputy Commissioner of Customs, which were challenged in W.P. no. 613 of 2001 and under certain conditions as already mentioned earlier, said writ application was disposed of on 2nd April, 2001. Furthermore, so far as the prayer restraining the respondent-Customs Authority from taking any step about recovery of the amount of duty and interest covered under demand notice dated 15th June, 1998, it appears from the different writ proceedings and the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consumption, the [Assistant Commissioner of Customs of Deputy Commissioner of Customs] shall remit the duty on such goods. [(2) The owner of any imported goods may at any time before an order for clearance of the goods for home consumption under Sec. 47 or an order for permitting the deposit of goods in a warehouse under Sec. 60 has been made, relinquish his title to the goods and thereupon he shall not be liable to pay the duty thereon.] [Provided that the owner of any such imported goods shall not be allowed to relinquish his title to such goods regarding which an offence appears to have been committed under this Act or any other law for the time being in force.]" From the representation filed against the demand notice, which was confirmed thereafter up to the CEGAT by order of dismissal of the appeal, this point also was taken. The word "remission of duty" is the catchword of Section 23 in the event of contingencies as mentioned thereto. The word "remission" presupposes levy of duty first and thereafter remission thereof under contingency as stipulated in the said Section. In the instant case, we are of the view that the said Section has no applicability for the sole reason t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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