Nanya Imports and Exports Enterprises vs Directorate of Revenue Intelligence

K.A. Swami, C.J.—This appeal is preferred against the order dated 13th December, 1994 passed in Writ Petition No. 19343 of 1994.

Learned Single Judge has directed the respondents to complete the investigation within a period of 4 weeks from the date of the order, decide the

matter and issue show cause notice within a period of 10 days after the investigation is concluded and complete the adjudication within 3 weeks

after the show cause notice is issued.

The appellant/petitioner is not aggrieved with the aforesaid direction. However, at the instance of the petitioner, learned single Judge has

permitted the petitioner to take benefit of Section 49 of the Customs Act, in the event it pays the duty payable on the admitted value of the goods

as entered in the bill of entry. The said portion of the order reads thus :-

If the petitioner wants to have the benefit of bonding of the goods u/s 49 of the Customs Act, pending completion of the investigation and

adjudication, he may have such benefit provided he pays the admitted amount of duty on these goods. On the admitted amount of duty, as per the

notifications in force, being paid, the Authorities shall permit the bonding of the goods u/s 49 of the Act.

The period granted by the learned single Judge for completion of the investigation will be over within 3 days. Thereafter, within a month, the

adjudication, has to be completed. Thus, on or before the 13th February, 1995, the entire process has to be completed.

The grievance of the appellant is that as per the provisions contained in the Customs Act, it is not at all necessary for the appellant/petitioner to

deposit the duty payable on the admitted value of the goods as entered in the bill of entry for the purpose of getting the goods stored in a public

warehouse covered by Section 49 of the Customs Act, as the duty can be paid only on the adjudication made according to the provisions of the

Act.

On the contrary, it is the contention of the respondents that the appellant/petitioner is not entitled to have the goods stored in the public

warehouse, unless the Assistant Collector of Customs is satisfied on the application of the importer that the goods cannot be cleared within a

reasonable time and that the delay in adjudication is due to the fact that certain things are investigated and verified. It is contended that when the

petitioner/appellant has requested the Court to exercise the power of the Assistant Collector of Customs u/s 49 of the Act which the court is not

bound to exercise in a petition under Article 226 of the Constitution and while doing so, if the Court has placed any condition, such a condition

need not be interfered with in an appeal.

Learned counsel for the appellant has taken us through the several provisions contained in the Act, viz., sub-sections (11) and (43) of Section 2

and Sections 7,12,15,17,18,46 and 111 and also 67 and 61 of the Act.

We are of the view that for the purpose of deciding this case, it is not at all necessary to adjudicate as to whether an importer of goods for home

consumption is entitled to seek for storage of imported goods in a public warehouse, pending clearance by the Customs Authorities because of the

fact that, that is not the relief sought for in the writ petition. The relief sought for in the writ petition is to direct the respondents to forthwith assess

and pass orders on bills of entry bearing numbers 28725 and 40553 dated 12-7-1994 and 16-9-1994 respectively. The relief u/s 49 is sought

only by way of special application. As already pointed out, such a relief is to be sought only before the Assistant Collector of Customs who will be

posted with the relevant facts and circumstances of the case and on taking into consideration all those facts, he would be able to take a decision as

to whether the importers should be allowed to store the imported goods in a public warehouse. When such a power is to be exercised by the

Court in a petition filed under Article 226 before which all the necessary facts and circumstances were not placed inasmuch as there is no material

placed as to why there is a delay in the investigation and why the adjudication has not been made in such a situation, the Court will have to take

care to ensure that the exercise of its discretion does not cause prejudice to the Revenue, therefore, bearing that aspect in view, the Learned single

Judge has imposed a condition of payment of duty on the value of the imported goods as entered in the bill of entry. It is open to the

petitioner/appellant to avail that on payment of duty or if it does not want to avail of it, the order does not compel him to pay the duty. At this

stage, therefore, we do not consider in this case to adjudicate the questions raised before us. Hence, the order under appeal does not call for

interference. The contentions based on Section 49 of the Act are left open. The appeal is dismissed. The C. M. P. is also dismissed. No order as

to costs.