2021 (9) TMI 1310 - HC - Customs

Warehousing of goods - re-testing of the goods in question inspite of the order of the Commissioner of Customs (Appeals) - HELD THAT - The Co-ordinate Bench of this Court in the case of Umber Marketing Pvt. Ltd. 2016 (8) TMI 712 - CALCUTTA HIGH COURT as well as in view of the order of the Appellate Authority dated 11th August, 2021 part of which has already been complied with by the subordinate authority and yet taking the stand that the respondent Customs Authorities will not comply the same since it wants to challenge the same before the Tribunal, is not sustainable in law. The petition is disposed of by directing the respondent concerned to allow the re-testing of the goods in question within a week from date at the expense of the writ petitioner and in the event if the test report goes against the petitioner, the amount deposited by the petitioner for re-testing will be forfeited.

Summary

Issues:
1. Petitioner aggrieved by Customs Authorities not allowing warehousing of goods and not considering re-testing.
2. Applicability of Appellate Authority's order and compliance by Customs Authorities.
3. Interpretation of previous decision in "Umbar Marketing Pvt. Ltd." case.
4. Dispute over appealability of Appellate Authority's order and time for filing further appeal.

Analysis:
1. The petitioner in this writ petition was aggrieved by the actions of the respondent Customs Authorities for not allowing the warehousing of the goods in question and for not considering the petitioner's prayer for re-testing of the goods despite an order from the Commissioner of Customs (Appeals) dated 11th August, 2021. The petitioner argued that the Appellate Authority's order is binding on the subordinate authority, and while one grievance was redressed during the pendency of the writ petition, the re-testing prayer was still pending.

2. The respondent Customs Authorities defended their actions by stating that the impugned order of the Appellate Authority was appealable, and the time for filing a further appeal before the Tribunal had not expired. They contended that the decision in the "Umbar Marketing Pvt. Ltd." case cited by the petitioner was not applicable to the current situation, as in that case, both parties had agreed to re-testing. The respondent's counsel also highlighted that the judgment in the "Umbar Marketing Pvt. Ltd." case had been accepted by the Customs Authorities without further challenge.

3. The Court, after considering the submissions of both parties and relying on the decision of a co-ordinate Bench in the "Umbar Marketing Pvt. Ltd." case, found that the stand of the respondent Customs Authorities to challenge the Appellate Authority's order before the Tribunal, despite partial compliance by the subordinate authority, was not sustainable in law. The Court questioned the inconsistency in the department's approach towards different parties and directed the respondent to allow re-testing of the goods within a week at the petitioner's expense, with a provision for forfeiture of the testing amount if the report goes against the petitioner.

4. The writ petition was disposed of with the direction for re-testing, without delving into the merits of any other claims made by the petitioner. The petitioner was granted the freedom to pursue appropriate proceedings before the relevant forum for any other claims. The Court emphasized the compliance with the re-testing directive and the consequences outlined in the judgment.