N.C. Alexander Importer and Exporter vs The Chief Commissioner of Customs, The Commissioner of Customs (Seaport - Import) and The Assistant Commissioner of Customs (Group 1)

M. Jaichandren, J.—The learned Counsel appearing on behalf of the Petitioner had submitted that this Court had been passing a number of

orders, in similar facts and circumstances, as in the present writ petition, directing the Respondents to release the goods in question, on the

Petitioner paying 30%of the differential duty and on his furnishing a personal bond for the balance amount. The learned Counsel appearing on

behalf of the Petitioner had relied on one of such orders, dated 1.3.2011, made in W.P. No. 4981 of 2011.

The learned Counsel appearing on behalf of the Petitioner had submitted that this Court may be pleased to pass a similar order, as in the other

similar writ petitions, as there are no changes in the facts and circumstances of the present case.

He had also submitted that, when other similarly placed importers of apples are not suspected of undervaluing their goods, it is improper for the

Respondents to suspect the bona fides of the business transactions of the Petitioner, who has been carrying on the business, in importing of apples

from other countries, for many years. The Respondents are acting at the behest of certain persons, who are competitors in the business of

importing of apples, as that of the Petitioner. As such, the baseless allegations made in the counter affidavit filed on behalf of the Respondents, in

the present writ petition, cannot be accepted.

He had also submitted that, as per the provisions of Sections 74 and 78 of the Indian Evidence Act, 1872, the documents produced by the

Petitioner, before the Respondents, should be presumed to be true and authentic. The Respondents cannot suspect the veracity of such

documents, without having sufficient evidence to do so. The allegations of the Respondents that the Petitioner is under invoicing the goods in

question, while importing them, has not been sufficiently substantiated, with acceptable evidence. Thus, it is clear that the act of the Respondents, in

detaining the goods in question, without releasing the same, is mala fide in nature. The request made on behalf of the Respondents that an order

may be passed by this Court for the provisional release of the goods, by directing the Petitioner to pay 50% of the differential duty, in cash, and on

furnishing a personal bond for the balance amount, is arbitrary and in appropriate.

Per contra, the learned Counsel appearing for the Respondents had submitted that the original contract, based on which the Petitioner had

imported the goods in question, does not seem to be genuine in nature. There are many discrepancies found in the documents produced by the

Petitioner before the Respondents. The Apostil ,certified by the Secretary of State, the State of Washington, United States of America, does not

contain the necessary particulars, as to the person in whose favour it had been issued and the purpose for which it has been issued.

He had also submitted that there are many variations in the pricing of the apples, said to have been purchased by the Petitioner from the United

States of America, for the purpose of importing the same into India, in the course of his business activities. The Petitioner had been under invoicing

the goods, with the mala fid intention of avoiding payment of the appropriate customs duty, as per law. He had also submitted that a detailed

investigation is being conducted by the Respondents in this regard. In such circumstances, this Court may be pleased to order provisional release

of goods in question, on the Petitioner paying 50% of the differential duty, in cash, and on his furnishing a personal bond for the balance amount,

subject to the adjudication proceedings to be conducted by the Respondents.

In view of the averments made in the affidavit filed in support of the writ petition and in the counter affidavit filed on behalf Respondents and in

view of the submissions made by the learned Counsels appearing on behalf of the parties concerned, and on a perusal of the records available, and

in view of the earlier orders passed by this Court, this Court finds it appropriate to direct the Respondents to release the goods in question, on the

Petitioner fulfilling the following conditions:

The Petitioner shall pay 50% of the differential duty, and for the balance amount, the Petitioner shall furnish a personal bond. On compliance of

both the conditions, the Respondents shall release the goods in question, forthwith. However, it is made clear that it would be open to the

Respondents to pass final orders, on completion of the adjudication process, in respect of the payment of customs duty, liable to be paid by the

Petitioner, if any, and to initiate other appropriate proceedings against the Petitioner, if he is found to have evaded payment of the customs duty, as

alleged by the Respondents, in accordance with the relevant provisions of law. The Petitioners hall co-operate, fully, in the proceedings that may

be initiated by the Respondents, for the assessment of customs duty.

The writ petition is ordered accordingly. No costs. No costs. Connected M.P.No.1 of 2011 is closed.