Jagat Malkani vs Union of India (UOI)

Heard.

Perused appeal.

Admit, on the following substantial question of law:

Whether the Revenue''s insistence on submission of Type Approval Certificate from a specified accredited agency from country of origin in the absence of an accredited agency in the country of origin, is contrary to the maxim lex non cogit ad impossibilia ?

Heard both the learned Counsel for the parties on interim relief. Learned Counsel for the appellant brought to our notice paragraph No. 11 of the impugned order, whereby the Type Approval Certificate was sought to be substituted with that of redemption fine reduced to Rs. 1,00,000/- and penalty reduced to Rs. 50,000/-. The appellant is ready and willing to furnish a bank guarantee to secure these amounts within a reasonable period. So far as the vehicle is concerned, it is in the custody of the Customs Department.

The learned Counsel for the appellant agreed to furnish an undertaking that the petitioner shall produce the Certificate of Registration of the vehicle within 60 days from the date of releasing the subject vehicle and that subject to the certification of the sitting capacity of the vehicle, it would be liable for classification. In the event of classification, the appellant shall first pay the differential duty as may be worked out without raising any objection, however subject to his legal remedies as may be available. The aforesaid prayer made by the learned Counsel for the appellant is opposed by Mr. R. Ashokan, learned Counsel for the Revenue, contending that they are intending to file SLP/appeal before the Apex Court. However as yet no such appeal has been filed.

Having heard parties, so far as the classification of the vehicle is concerned, it cannot be done unless there is a certificate issued by the RTO certifying the sitting capacity of the vehicle. Therefore, it is necessary to get the vehicle registered and obtain certificate from the RTO. Under these circumstances, it is necessary to direct provisional release of the vehicle so as to get it registered with the Registering Authority.

So far as the ''Type Approval Certificate'' is concerned, the judgment of the Delhi High Court is brought to our notice in the case of 2008 (127) ECC 184 wherein in paragraph (6), it is observed that directions to issue such Type Approval Certificate cannot be implemented for the reasons stated therein, with which we concur.

In the above view of the matter, taking over all view, we direct that the vehicle shall be provisionally released by the Customs Department and delivered in possession of the appellant for getting it registered with RTO within 60 days from the date of its release, subject to furnishing a bank guarantee of any nationalised bank with usual clause of automatic renewal in the sum of Rs. 1,50,000/- within one week from the receipt of copy of this order. After registration of the vehicle, the respondent shall not deal and/or use the vehicle in any manner whatsoever and shall not create any third party interest thereon. The petitioner shall maintain the vehicle in good condition and shall produce the same before the Customs Department as and when demanded. Undertaking referred to in para (3) supra to be filed within one week from today. Interim arrangement to operate in terms of this order until further orders, if any.