Nature Coffee Curing And Processing, Represented By Its Partner Shanavaz vs. Union Of INDIA

WP(C)/38741/2023HC KeralaGSTCNR KLHC01087218202322 November 2023Bench: HONOURABLE MR. JUSTICE D. K. SINGH6 pages

For Petitioner: SRI. JOHN VARGHESE, SRI. SONU AUGUSTINEFor Respondent: SRI. SREELAL N. WARRIER – SC

AI SummaryDismissed

Facts

The petitioner, Nature Coffee Curing and Processing, imported 27 metric tons of Sri Lankan areca nuts through Cochin Port on September 25, 2023. Payments were made on September 25, 2023, and October 18, 2023. The petitioner submitted an advance bill of entry on October 12, 2023, seeking exemption benefits under Notification No. 26/2000 issued under Section 25(1) of the Customs Act, 1962. The bill of entry was provisionally assessed by the Faceless Assessment Authority with Integrated Goods and Service Tax (IGST) at 12% instead of 5%, and a 100% bank guarantee was imposed. The petitioner requested a revision from the Assistant Commissioner of Customs, seeking removal of the bank guarantee and reduction of IGST to 5%. Following this, an order (Exhibit P-14) was passed, reducing IGST by 5% but imposing Customs Duty of Rs. 8,82,123/- and requiring a bond and bank guarantee of Rs. 1,85,24,592/- for goods release.

Held

The Court held that it would not entertain the writ petition because an alternative remedy of appeal under Section 128 of the Customs Act, 1962 is available to the petitioner. The Court reasoned that if an order is not without jurisdiction or in violation of the principles of natural justice, a writ petition should not be entertained merely because the petitioner believes the order is contrary to some provision of the Customs Act. The Court found that the impugned order could not be said to be without jurisdiction, even if it was potentially against some provisions of the law. Therefore, the Court dismissed the writ petition, granting the petitioner liberty to file an appeal against the impugned order within fifteen days, with a direction to the appellate authority to consider it expeditiously.

Key Issues

1. Whether the High Court should entertain a writ petition challenging a provisional assessment order when an alternative remedy of appeal under Section 128 of the Customs Act, 1962 is available? Petitioner's contention: The petitioner approached the High Court by way of a writ petition. The judgment does not record any specific arguments made by the petitioner regarding why the writ petition should be entertained despite the availability of an appeal. Revenue's contention: The revenue, through the Standing Counsel, implicitly argued that the writ petition should not be entertained due to the availability of an alternative remedy. The judgment notes that the petitioner has a remedy of appeal under Section 128 of the Customs Act.

Sections Cited

Section 25(1), Section 128

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH WEDNESDAY, THE 22ND DAY OF NOVEMBER 2023 / 1ST AGRAHAYANA, 1945 WP(C) NO. 38741 OF 2023 PETITIONER: NATURE COFFEE CURING AND PROCESSING, REPRESENTED BY ITS PARTNER SHANAVAZ, AGED 49 YEARS, KELLUR, 5TH MILE, VELLAMUNDA, MANANTHAVADY, WAYANAD DISTRICT, KERALA STATE, PIN – 670645. BY ADVS. SRI. JOHN VARGHESE SRI. SONU AUGUSTINE RESPONDENTS: 1 UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, NORTH BLOCK, NEW DELHI, PIN – 110001. 2 THE COMMISSIONER OF CUSTOMS, CUSTOM HOUSE, KOCHI, PIN – 682009. 3 ASSISTANT COMMISSIONER OF CUSTOMS IMPORT GROUP, CUSTOM HOUSE, KOCHI, PIN – 682009. 4 APPRAISER (IMPORTS) CUSTOM HOUSE, KOCHI, PIN – 682009. BY ADV. SRI. SREELAL N. WARRIER – SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 38741 OF 2023 2 DINESH KUMAR SINGH, J. -------------------------- W.P.(C) No.38741 of 2023 ------------------------- Dated this the 22nd day of November, 2023

JUDGMENT

The present writ petition has been filed impugning the provisional assessment order in Exhibit P-14 imposing Customs Duty of Rs. 8,82,123/-. Petitioner has been directed to execute bond for Rs. 1,85,24,592/- and furnish bank guarantee for the said amount for release of the goods imported by the petitioner. 2. according to the petitioner, the petitioner had imported from Sri Lanka twenty seven metric tone of Sri Lankan areca nuts through Cochin Port on 25.09.2023. Payments were made through Federal Bank on 25.09.2023 and 18.10.2023. An advance bill of entry No. 8271746 dated 12.10.2023 was submitted before the 2nd respondent along with bill of lading, invoice, packing list and Country of origin certificate in order to claim benefit of exemption as per Notification No. 26/2000 issued under Section 25 (1) of the Customs Act, 1962 issued by the Government of India in Exhibit P-2. WP(C) NO. 38741 OF 2023 3

The bill of entry submitted by the petitioner was provisionally assessed by the Faceless Assessment Authority with Integrated Goods and Service Tax (IGST) at 12% instead of 5% and 100% bank guarantee. Against the said provisional assessment, the petitioner approached the 3rd respondent as no action was taken on Exhibit P- 11 request of the petitioner dated 13.10.2023. The petitioner requested the 3rd respondent to revise the provisional assessment order. Again on 26.10.2023 vide Exhibit P-13 it was prayed that the Customs Duty was exempted as per Exhibit P-2 notification and that bank guarantee of 100% to be removed and IGST should be reduced to 5% instead of 12%.

Considering the said request, Exhibit P-14 order has been passed whereby IGST has been reduced by 5% but, Customs Duty has been imposed at Rs. 8,82,123/- and the petitioner has been directed to execute bond and bank guarantee for an amount of Rs. 1,85,24,592/- for release of the goods.

Petitioner has approached this Court by filing this writ petition. Petitioner has remedy of appeal under Section 128 under the provisions of the Customs Act against the said order.

WP(C) NO. 38741 OF 2023 4

The order impugned cannot be said to be without juri iction even if the order can be said to be against some provisions of the law. When there is provision of appeal, this Court would not assume the juri iction of the Appellate Authority on the ground that the order passed by the Assessing Authority is against the law. If the order impugned is not without juri iction or it is not in violation of the principles of natural justice, this Court would not entertain the writ petition merely on the ground that in the opinion of the petitioner, the order runs contrary to some provision of the Customs Act, 1962. 7. In view thereof, the present writ petition is hereby dismissed. The petitioner is permitted to file appeal against the impugned order within a period of fifteen days from today and the appellate authority should consider the same expeditiously in accordance with the law. DINESH KUMAR SINGH JUDGE Svn

WP(C) NO. 38741 OF 2023 5

Appendix — schedule of exhibits

APPENDIX OF WP(C) 38741/2023 PETITIONER’S EXHIBITS EXHIBIT P-1 TRUE COPY OF THE NOTIFICATION NO. 63/2023 DATED 31-08-2023 ISSUED BY THE GOVERNMENT OF INDIA EXHIBIT P-2 TRUE COPY OF THE NOTIFICATION NO. 26/2000 DATED 01-03-2000 ISSUED BY THE GOVERNMENT OF INDIA EXHIBIT P-3 TRUE COPY OF CUSTOMS TARIFF (DETERMINATION OF ORIGIN OF GOODS UNDER THE FREE TRADE AGREEMENT BETWEEN THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA AND THE REPUBLIC OF INDIA) RULES, 2000 EXHIBIT P-4 TRUE COPY OF THE INSTRUCTION NO. 15/2023 DATED 03-05-2023 ISSUED BY THE GOVERNMENT OF INDIA EXHIBIT P-5 TTRUE COPY OF THE CONTRACT ORDER OF THE PETITIONER WITH UNISTAR INTERNATIONAL PVT. LTD. DATED 25-09-2023 EXHIBIT P-6 TRUE COPY OF THE FOREIGN BILL TRANSACTION ADVICE DATED 25-09-2023 EVIDENCING PAYMENT TO THE FOREIGN SELLER EXHIBIT P-7 TRUE COPY OF THE FOREIGN BILL TRANSACTION ADVICE DATED 18-10-2023 EVIDENCING PAYMENT TO THE FOREIGN SELLER EXHIBIT P-8 TRUE COPY OF THE BILL OF ENTRY NO. 8271746 DATED 12-10-2023 EXHIBIT P-9 TRUE COPY OF THE CERTIFICATE OF ORIGIN DATED 11-10-2023 ISSUED BY THE ASSISTANT DIRECTOR OF COMMERCE, COLOMBO TO THE PETITIONER AS PER EXHIBIT P-3 RULES EXHIBIT P-10 TRUE COPY OF THE APPROVAL OF THE CERTIFICATE OF ORIGIN BY THE DEPARTMENT OF THE SRI LANKAN GOVERNMENT WP(C) NO. 38741 OF 2023 6 EXHIBIT P-11 TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 13-10-2023 BY THE PETITIONER EXHIBIT P-12 TRUE COPY OF THE LETTER DATED 16-10-2023 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT EXHIBIT P-13 TRUE COPY OF THE LETTER DATED 26-10-2023 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT EXHIBIT P-14 TRUE COPY OF THE PROVISIONALLY ASSESSED EXHIBIT P-8 BILL OF ENTRY

Reproduced from the public record of the Kerala High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.