Star PVG Exports and 2 Ors vs Union of India and Anr

Heard learned Counsel for the Petitioners and learned Counsel for the Respondents. In this Writ Petition, Petitioners have prayed for direction to Respondent No. 2 to forthwith clear the goods of the Petitioners for exportation and permit the Vessel M.V. Angel S. to sail out of the Port by giving port clearance certificate. This Court on 26/12/2007, after hearing the parties has passed the following order:

P.C.:

Heard the Advocates for the parties. To be fixed for hearing on admission and interim relief, immediately, on reopening after Christmas Vacation.

Meanwhile, having gone through the records, including the Assessment Order passed on 20/12/2007 and further order passed of shipment as well as the laboratory report regarding the goods dated 22/12/2007 and the provisions of law, particularly Sections 17 and 18 of the Customs Act, 1962, there shall be an ad interim relief permitting the Vessel M.V. Angel S. to sail out of the port, forthwith with necessary port clearance certificate for exportation of the goods of the petitioners, on the petitioners depositing an amount of Rs. 96,25,000/-with the respondent No.2 and without insisting upon any further payment at this stage from the petitioners. The payment ordered to be made is without prejudice to the rights of the parties.

Meanwhile, the learned Counsel for the respondents has drawn my attention to the letter dated 19.12.07, sent by the petitioners to the Deputy Commissioner of Customs and has submitted that a copy of the said letter placed on records is a truncated copy of the original letter sent to the Deputy Commissioner of Customs inasmuch that the admission on the part of the petitioners as regards defective cargo and different from the specifications described in the Schedule below has been omitted from the copy placed on record. On perusal of the original letter dated 18.12.07, addressed by the petitioners to the Deputy Commissioner of Customs and on comparing the same with Exhibit "A" at page 17 to the petition, it is found that in the copy of the letter at Exhibit "A", the following sentence from the original letter is missing:

This we find as defective cargo and not as per our specifications, however, we request your good selves to allow the loading.

The Petitioners are afforded an opportunity to tender their explanation for filing the copy of the letter omitting the said relevant sentence from the original letter addressed to the Deputy Commissioner of Customs. The explanation in that regard should be placed on record on the next date of hearing. Place the matter on Board on 14.1.2008. Copies of this order, duly authenticated, be issued to the parties.

We are informed by learned Counsel for the Petitioners that in pursuance of this order, the Petitioners have deposited Rs. 96,25,000/-with Respondent No.2 and after the deposit was made the Vessel was allowed to sail out of the Port. It further appears that the Respondents have imposed penalty of Rs. 96,25,000/-and fine of Rs. 2 lacs, which Petitioners have not paid so far. Learned Counsel for the Petitioners submits that the Petitioners desire to challenge the order imposing duty as well as fine and penalty by way of an appeal u/s 129 of the Customs Act.

In so far as the observations made in para 3 of the order dated 26/12/2007 are concerned, learned Counsel for the Respondents submits that an issue of omitting the relevant sentence from the original letter dated 18/12/2007 may be kept open for the Respondents to initiate appropriate action against the Petitioners. Learned Counsel for the Petitioners has no objection for keeping the issue open to be dealt with by appropriate authority in an appropriate proceedings. Having considered the submissions of the learned Counsel for the parties, we are satisfied that this petition can be conveniently disposed of by the following order:

(a) It is open for the Petitioners to challenge the imposition of duty as well as penalty and fine, impugned in the present Writ Petition, by way of an appeal, within the time stipulated u/s 129 of the Customs Act. It is also open for the Petitioners to seek appropriate interim order in the appeal. If such appeal and the application for interim relief is filed by the Petitioners, same may be considered on merits in accordance with law. While passing this order we shall not be understood to have examined the merits of the case.

(b) The issue of omitting the relevant sentence from the original letter dated 18/12/2007 is kept open for the Respondents to initiate appropriate action against the Petitioners in respect thereof, if they so desire. We are not expressing any opinion as to whether the omission was intentional/deliberate and attracts any action, penal or otherwise, and keep it open for the appropriate authority to deal with it on merits in accordance with law. The explanation offered by the Petitioners, as directed vide order dated 26/12/2007, to be placed before the said authority. All contentions of the parties are kept open.

With these observations, Writ Petition is disposed of.