Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH MONDAY, THE 11TH DAY OF SEPTEMBER 2023 / 20TH BHADRA, 1945 WP(C) NO. 21987 OF 2022 PETITIONERS:
1 UTTAM GHORAI, AGED 32 YEARS S/O. SAKHI GHORAI, ROOM NO.315, SHIV SHANKAR CHS, JERBAI WADIA ROAD, PAREL, MUMBAI, PIN – 400 012.
2 MANAS JANA, AGED 31 YEARS S/O. SUNIL JANA, AMODARKUL, KASBARH, GHATAL, PASCHIM MEDINIPUR, WEST BENGAL, PIN – 721 212.
BY ADV TOMSON T.EMMANUEL RESPONDENTS:
1 ADDITIONAL COMMISSIONER OF CUSTOMS (PREVENTIVE) CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, 5H FLOOR, CATHOLIC CENTER, BROADWAY, COCHIN, PIN – 682 031.
2 INSPECTOR OF RAILWAY PROTECTION FORCE (CIB) RAILWAY POLICE STATION, PALAKKAD, KERALA, PIN – 695 022.
3 SUPERINTENDENT OF CUSTOMS CUSTOMS PREVENTIVE & NARCOTICS UNIT, C R BUILDINGS, METTUPPALAYAM STREET, PALAKKAD, KERALA, PIN – 678 001.
4 UNION OF INDIA MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NORTH BLOCK OF CENTRAL SECRETARIAT, NEW DELHI REPRESENTED BY SECRETARY TO GOVERNMENT, PIN – 110 011.
5 BUREAU OF INDIA STANDARDS DEPARTMENT OF CONSUMER AFFAIRS, 9TH BAHADUR SHAH ZAFAR MARG, NEW DELHI, REPRESENTED BY ITS DIRECTOR GENERAL, PIN – 110 002.
WP(C) NO. 2883 & 21987 OF 2022 2 6 COMMISSIONER OF CUSTOMS (PREVENTIVE) HEAD QUARTS, REVIEW CELL, CUSTOMS HOUSE, WELLINGTON ISLAND, COCHIN, PIN – 682 009.
BY ADVS.
SMT.PREETHA S. NAIR, SC, CENTRAL BOARD OF EXCISE AND CUSTOMS SHRI.MANOJ RAMASWAMY,, SC, BUREAU OF INDIAN STANDARDS OTHER PRESENT:
SREELAL WARRIOR-SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.09.2023, ALONG WITH WP(C).2883/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 2883 & 21987 OF 2022 3 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH MONDAY, THE 11TH DAY OF SEPTEMBER 2023 / 20TH BHADRA, 1945 WP(C) NO. 2883 OF 2022 PETITIONER:
M/S.A.S.JEWELLERS, AGED 52 YEARS 17/20C, ELAMTHURUTHI, THRISSUR-680 306, REPRESENTED BY ITS MANAGING PARTNER, SRI.ANTO.K.D.
BY ADV TOMSON T.EMMANUEL RESPONDENTS:
1 JOINT COMMISSIONER OF CUSTOMS(PREVENTIVE), CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, 5TH FLOOR, CATHOLIC CENTER, BRAODWAY, COCHIN-682 031.
2 INSPECTOR OF RAILWAY PROTECTION FORCE (CIB), RAILWAY POLICE STATION, PALAKKAD-695 022.
3 SUPERINTENDENT OF CUSTOMS, CUSTOMS PREVENTIVE & NARCOTICS UNIT, C R BUILDINGS, METTUPPALAYAM STREET, PALAKKAD-678 001.
4 UNION OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NORTH BLCOK OF CENTRAL SECRETARIAT, NEW DELHI-110 011, REPRESENTED BY SECRETARY TO GOVERNMENT.
5 BUREAU OF INDIAN STANDARDS, DEPARTMENT OF CONSUMER AFFAIRS, 9TH BAHADUR SHAH ZAFAR MARG, NEW DELHI-110 002, REPRESENTED BY ITS DIRECTOR GENERAL.
WP(C) NO. 2883 & 21987 OF 2022 4 BY ADVS.
P.G.JAYASHANKAR SRI.A.DINESH RAO, SC, RAILWAYS SHRI.MANOJ RAMASWAMY,, SC, BUREAU OF INDIAN STANDARDS MANU S., ASG OF INDIA MANOJ RAMASWAMY S.MANU SRI.KRISHNADAS P.NAIR, CGC(CG-391) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.09.2023, ALONG WITH WP(C).21987/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 2883 & 21987 OF 2022 5 DINESH KUMAR SINGH, J ………………………………………………...
WP(C) NO. 2883 OF 2022 & WP(C) NO. 21987 OF 2022 …………………………………………………...
Dated this the 11th day of September, 2023 JUDGMENT 1.
Both writ petitions have been filed against Ext. P8 show cause notice in WP(C) No.2883 of 2022 and Ext.P6 and Ext.P6(a) show cause notice in WP(C) No.21987 of 2022. After adjudication of the show cause notices, the order Ext.P10 in WP(C) No.2883 of 2022 and Ext.P10 and Ext.P11 in WP(C) No.21987 of 2022 had been passed in favour of the petitioners. It appears that the petitioners have moved applications before the 3rd respondent for release of gold ornaments. However, no procedure have been taken till date on the said applications of
WP(C) NO. 2883 & 21987 OF 2022 6 the petitioners.
2.
The Learned Standing Counsel for the Revenue submits that, the rectification orders are being done under Section 129 of the GST Act. The time limit for filing an appeal is three months. The three months time period does not met or not expired from the date of rectification order and therefore, the seized goods has not been released.
It is further submitted that, if the department does not file an appeal against the rectification orders, the seized goods of the petitioners shall be released.
3.
Considering the aforesaid submissions on behalf of the customs authority, the present writ petitions are disposed of with a direction to the respondent No.3 to pass appropriate order regarding the release of the seized goods of the
WP(C) NO. 2883 & 21987 OF 2022 7 petitioners within a period of two months from today. If the appeal is filed and no interim order is obtained by the departments, then the goods shall be released by furnishing bonds.
4.
With the aforesaid directions, the Writ Petitions are disposed of.
Sd/- DINESH KUMAR SINGH JUDGE rpr
WP(C) NO. 2883 & 21987 OF 2022 8 APPENDIX OF WP(C) 2883/2022 PETITIONER’S EXHIBITS Exhibit P1 TRUE COPY OF DELIVER CHALLAN NO.1271 DATED 16.02.2021 ISSUED BY M/S. MANGAL & MANGAL THANGA MALIGAI, TRICHY PRODUCED BEFORE 2ND RESPONDENT.
Exhibit P1 A TRUE COPY OF DELIVERY CHALLAN NO.311 DATED 16.02.2021 ISSUED BY M/S. MANGALAM & NANGAL THANGA MALIGAI, TRICHY, PRODUCED BEFORE 2ND RESPONDENT.
Exhibit P1 B TRUE COPY OF TAX INVOICE NO.1271 DATED 16.02.2021 ISSUED BY M/S. AMN JEWELERS (PRIVATE) LTD. TRICHY, PRODUCED BEFORE 2ND RESPONDENT.
Exhibit P2 TRUE COPY OF MAHAZAR DATED 17.02.2021 CLAIMED TO HAVE PREPARED AT 8 AM JOINTLY BY 2ND AND 3RD RESPONDENT RECOVERING REFINED GOLD CUT PIECES AND GOLD ORNAMENTS.
Exhibit P3 TRUE COPY OF MAHAZAR DATED 17.02.2021 CLAIMED TO HAVE PREPARED AT 2.40 PM BY 3RD RESPONDENT AFTER TRANSFERRING REFINED GOLD CUT PIECES AND GOLD ORNAMENTS.
Exhibit P4 TRUE COPY OF DETENTION MEMO DATED 17.02.2021 ISSUED BY 3RD RESPONDENT.
Exhibit P5 TRUE COPY OF ASSAY CERTIFICATE DATED 15.03.2021 ALLEGED TO HAVE OBTAINED FROM A GOLD ASSAYER, BY 3RD RESPONDENT.
Exhibit P6 TRUE COPY OF MAHAZAR DATED 15.03.2021 PREPARED BY 3RD RESPONDENT ON BASIS OF EXT.P5.
Exhibit P7 TRUE COPY OF SEIZURE MEMO DATED 15.03.2021 ISSUED BY 3RD RESPONDENT.
Exhibit P8 TRUE COPY OF SHOW CAUSE NOTICE DATED 12.08.2021 ISSUED TO PETITIONER BY 1ST RESPONDENT.
Exhibit P9 TRUE COPY OF REPLY DATED 15.11.2021 SUBMITTED BEFORE THE 1ST RESPONDENT AGAINST EXT.P8 SHOW CAUSE NOTICE.
Exhibit P10 TRUE COPY OF ORDER NO.39/2023-24 CUSTOMS (PREV) DATED 09.06.2023 PASSED BY 1ST RESPONDENT IN THE EXT P8 SHOW CAUSE NOTICE ISSUED BY 3RD RESPONDENT.
WP(C) NO. 2883 & 21987 OF 2022 9 APPENDIX OF WP(C) 21987/2022 PETITIONER’S EXHIBITS Exhibit P1 TRUE COPY OF APPROVAL MEMO NO.015 DATED 08.09.2021 ALONG WITH DELIVERY CHELLAN NOS.8 TO 10 DATED 22.09.2021 PRODUCED BEFORE 2ND RESPONDENT.
Exhibit P2 TRUE COPY OF MAHAZAR DATED 23.09.2021 PREPARED BY 2ND RESPONDENT.
Exhibit P2(a) TRUE COPY OF MAHAZAR DATED 23.09.2021 PREPARED BY 3RD RESPONDENT.
Exhibit P3 TRUE COPY OF LETTER DATED 16.12.2021 SUBMITTED BY PETITIONERS BEFORE 3RD RESPONDENT.
Exhibit P4 TRUE COPY OF DETENTION MEMO DATED 24.09.2021 ISSUED TO PETITIONERS BY 3RD RESPONDENT.
Exhibit P5 TRUE COPY OF LETTER DATED 28.12.2021 ISSUED TO PETITIONERS BY 3RD RESPONDENT, ALONG WITH COPY OF MAHAZAR DATED 24.09.2021 SAID TO HAVE PREPARED BY 3RD RESPONDENT.
Exhibit P6 TRUE COPY OF SHOW CAUSE NOTICE DATED 19.03.2022 ISSUED TO 1ST PETITIONER BY 1ST RESPONDENT.
Exhibit P6(a) TRUE COPY OF SHOW CAUSE NOTICE DATED 19.03.2022 ISSUED TO 2ND PETITIONER BY 1ST RESPONDENT.
Exhibit P7 TRUE COPY OF LETTERS DATED 26.03.2022 SUBMITTED BY PETITIONERS BEFORE 3RD RESPONDENT, REQUESTING TO PROVIDE, COPY OF ASSAY CERTIFICATE ISSUED BY MR.C N PRADEEP KUMAR, REFERRED IN EXT-P6 AND P6(A) SHOW CAUSE NOTICES.
Exhibit P8 TRUE COPY OF REPLY DATED 12.04.2022 SUBMITTED BY PETITIONERS BEFORE 1ST RESPONDENT AGAINST EXT P6 AND P6(A) SHOW CAUSE NOTICES.
Exhibit P9 TRUE COPY OF INTERIM ORDER DATED 21.02.2022 IN WP(C) NO.2883 OF 2022, PASSED BY THIS HON'BLE COURT ON SIMILAR SET OF FACT.
Exhibit P10 TRUE COPY OF ORDER NO.57/2023-24 CUSTOMS (PREV.) DATED 16.06.2023 IN ADJUDICATION, PASSED BY 1ST RESPONDENT IN EXT P6 SHOW CAUSE NOTICE ISSUED TO 1ST PETITIONER BY 1ST RESPONDENT.
WP(C) NO. 2883 & 21987 OF 2022 10 Exhibit P11 TRUE COPY OF ORDER NO.58/2023-24 CUSTOMS (PREV.) DATED 16.06.2023 IN ADJUDICATION, PASSED BY 1ST RESPONDENT IN EXT P6(A) SHOW CAUSE NOTICE, ISSUED TO 2ND PETITIONER BY 1ST RESPONDENT.