2016 (9) TMI 672 - HC - Customs

Release of detained consignments - Section 110 of the Customs Act, 1962 - option to pay redemption fine along with duty and interest - Sections 28 and 125 of the Customs Act, 1962 - Coke Breeze - benefit of exemption notification No.12/2012, dated 17.03.2012 - exemption from payment of Basic Customs Duty - Metallurgical Coke - clearance of 69848.48 metric tons of goods by availing benefit of exemption notification - denial of exemption for clearance of balance 14801.52 metric tons of consignments and goods detained - whether for the release of 14801.52 metric tons of material lying in Port, the petitioner should be directed to pay the differential duty relating to the total consignment of about 84365 metric tons or whether the goods can be released upon payment of the proportionate differential duty representing the duty payable for the goods, of which release is now sought? - Held that - though the object of the proceedings under Sections 28 and 125 of the Act are different from each other, they overlap. This is the reason why the Supreme Court held in Commissioner of Customs (Import), Mumbai Vs. Jagdish Cancer & Research Centre 2001 (8) TMI 113 - SUPREME COURT OF INDIA) that the order for payment of duty under Section 125(2) would be an integral part of the proceedings relating to confiscation and consequential orders thereon. All the goods, including those already cleared, were liable for confiscation under Section 111(m), and that since a major portion of the goods had already been cleared, it was not possible physically to confiscate or detain them. Since such a deeming fiction is created, even in respect of the goods already released, the expression such goods appearing in Section 125(2), has to be construed as referring to all the goods that were liable for confiscation, but which escaped confiscation for whatever reasons. Otherwise, the appeal filed by the petitioner before the CESTAT as against the order in original, will itself turn out to be an exercise confined only to the goods now detained. The entire order in original is on appeal before the CESTAT. What the petitioner is now seeking in this writ petition is to order the release of the goods, by accepting a portion of the order, without prejudice to their rights in the appeal. If the petitioner had raised such a plea before the Tribunal, the Tribunal may probably take a holistic view of the entire matter. For the purpose of seeking an interim relief, an interpretation of the nature made by the petitioner cannot be accepted by the Court. - Writ Petition dismissed. It will be open to the petitioner to seek appropriate orders from the CESTAT. - decided against petitioner.

Summary

Issues:
1. Detention of imported goods at Gangavaram Port.
2. Claim for exemption from payment of basic customs duty.
3. Demand of differential duty by the Department of Customs.
4. Adjudication order passed by the 1st respondent.
5. Appeal filed before the CESTAT.
6. Application for release of remaining goods by the petitioner.
7. Interpretation of Section 125(2) of the Customs Act.
8. Conflict between Sections 28 and 125 of the Act.
9. Consideration of the release of goods upon payment of proportionate duty.

Analysis:

1. The petitioner sought a Mandamus to direct the 1st respondent to release the goods detained at Gangavaram Port upon payment of redemption fine and duty amount. The issue arose when the Department of Customs claimed that the imported Coke Breeze did not qualify for exemption under a specific notification, leading to the detention of goods.

2. The petitioner imported Coke Breeze claiming exemption from basic customs duty under a notification. However, the Department of Customs later disputed this claim, resulting in the detention of goods and a demand for a substantial amount of differential duty.

3. The 1st respondent passed an order of adjudication denying the exemption claimed by the petitioner, demanding a significant differential duty amount, and ordering the confiscation of goods. The order also imposed a redemption fine and a penalty on the importer.

4. The petitioner filed an appeal before the CESTAT against the order in original. Meanwhile, the petitioner applied for the release of remaining goods by offering to pay a specific amount towards redemption fine, duty, and interest, which was not accepted by the 1st respondent, leading to the writ petition.

5. The main contention revolved around the interpretation of Section 125(2) of the Customs Act concerning the liability to pay duty and charges in case of a fine in lieu of confiscation. The petitioner argued that the duty payable should only relate to the detained goods and not the entire consignment.

6. The court analyzed the overlap between Sections 28 and 125 of the Act and referred to a Supreme Court judgment highlighting the integral nature of duty payment in confiscation proceedings. The court noted that the order in original deemed all goods, including those released, as liable for confiscation, impacting the interpretation of "such goods" in Section 125(2).

7. Ultimately, the court dismissed the writ petition, stating that the interpretation sought by the petitioner could not be accepted for interim relief. The court advised the petitioner to seek appropriate orders from the CESTAT, considering the pending appeal. The judgment emphasized the need for a holistic view by the Tribunal in such matters.