2019 (11) TMI 571 - HC - Customs

Provisional release of seized goods - kerosene - rejection of classification adopted by the respondent - this Court is of the considered view that an order of provisional release should not be entertained at this juncture and more particularly, when the show cause notice dated 26-10-2018 has already been issued - HELD THAT - This Court, while allowing the appeal and setting aside the order passed by the Learned Single Judge in the present writ petition, is inclined to issue an appropriate direction for the conclusion of adjudication of the said show cause notice. The respondent herein - writ petitioner is directed to complete the adjudication of the said show cause notice dated 26-10-2018 on or before 16-4-2019 - Appeal allowed by way of remand.

Summary

Issues:
1. Barred by principles of constructive res judicata.
2. Dispute over classification and test report.
3. Provisional release of goods.
4. Cooperation in adjudication process.

Analysis:
1. The judgment deals with the issue of whether the present writ petition, seeking an identical relief as an earlier petition that was dismissed, is barred by the principles of constructive res judicata. The Court notes that the prayer in the current petition is the same as in the previous one, where relief was not granted. Consequently, the Court holds that the present petition is indeed barred by constructive res judicata, providing sufficient grounds for its dismissal.

2. Another issue addressed in the judgment is the dispute raised by the writ petitioner regarding the classification adopted by the Department and the test report. The Court clarifies that the forum before which such disputes can be raised is not the current Court. The Department's view was that the imported goods were kerosene, a product typically imported by oil companies. The Court opines that the dispute over classification and the test report is not within its purview.

3. The judgment also considers the question of whether an order of provisional release should be entertained at the current stage, especially when a show cause notice proposing confiscation and penalties has already been issued. The Court decides that provisional release should not be granted at this juncture, given the circumstances and the pending show cause notice.

4. Lastly, the issue of cooperation in the adjudication process is addressed. The Court notes that the appellant's counsel has indicated that if the writ petitioner cooperates, the adjudication process will be completed promptly. Considering this, the Court allows the appeal, setting aside the earlier order, and directs the writ petitioner to cooperate in the adjudication of the show cause notice by a specified date. The judgment emphasizes the importance of cooperation in the adjudication process and sets a deadline for its completion.