2021 (2) TMI 368 - HC - Customs

Maintainability of petition - availability of alternative remedy as provided under Section 128 of the Customs Act, 1962 - petition filed without waiting for the appeal period, the respondents are attempting to invoke Bank Guarantee and if it is permitted, the petitioner herein will have to suffer irreparable loss and hardship - HELD THAT - The goods imported against 20 bills of entry are Raw Cashew Kernel Pieces and order that the subject goods to be appropriately classified under CTH 0801 32 10 and charged to duties accordingly. Petition disposed off.

Summary

Issues:
1. Invocation of Bank Guarantee without waiting for appeal period under Section 128 of the Customs Act, 1962.

Analysis:
The petitioner raised concerns regarding the invocation of Bank Guarantee by the respondents before the appeal period provided under Section 128 of the Customs Act, 1962. The Deputy Commissioner of Customs issued an Order-in-Original, classifying the imported goods as Raw Cashew Kernel Pieces and ordering final assessment under CTH 0801 32 10, along with the recovery of duties amounting to ?8,80,16,855 from the importers. The order also directed the enforcement of Bank Guarantees to adjust the amounts due from the importers against the subject bills of entry. The petitioner argued that the remedy of appeal under Section 128 is a substantive remedy, and invoking the Bank Guarantee before the appeal period would cause irreparable loss and hardship.

The Court acknowledged the petitioner's concerns and emphasized the importance of the appeal remedy provided under Section 128 of the Customs Act, 1962. The Court decided to dispose of the writ petition, allowing the petitioner to prefer an appeal within two weeks from the date of the order. It was directed that if an appeal is filed, the Principal Commissioner of Customs should consider it promptly and pass appropriate orders in accordance with the law. Additionally, the Court ordered to maintain the status quo on the encashment of the Bank Guarantee for three weeks, subject to renewal by the petitioner. The Court clarified that failure to renew the Bank Guarantee would not benefit the petitioner.

In conclusion, the Court disposed of the writ petition without imposing any costs. The judgment provided a pathway for the petitioner to exercise the right of appeal under Section 128 of the Customs Act, 1962, within the stipulated timeframe. The Court's decision aimed to balance the interests of the petitioner with the statutory provisions and procedural safeguards available under the law.