2023 (3) TMI 1288 - HC - Customs

Permission to redeem the goods on payment of fine - import of Kerosene (Petroleum Hydro Carbon Solvent) (prohibited goods) or not - HELD THAT - The writ petition is disposed of with the directions imposed - The 2nd respondent shall provide to the petitioner copies of all test reports/report relied upon in Ext.P2 order to establish that the goods imported by the petitioner are prohibited goods. This shall be done within one week from the date of receipt of a certified copy of the judgment - A sample of the product shall also be permitted to be drawn by the petitioner for establishing that the goods in question are not prohibited goods. This shall also be permitted within a period of one week from the date of receipt of a certified copy of the judgment.

Summary

Issues: Import of alleged prohibited goods, validity of Ext.P2 order, availability of test reports, jurisdiction under Article 226 of the Constitution of India.

Analysis:
1. Import of Alleged Prohibited Goods: The petitioner imported material claimed as raw material for a paint factory, contending it was an industrial compound, not Kerosene. However, the Customs Department deemed it as Kerosene, a prohibited item. The petitioner expected to redeem the goods upon payment of a fine, but the Department issued Ext.P2 order imposing a redemption fine and penalty, allowing re-export of the goods.

2. Validity of Ext.P2 Order: The petitioner's counsel argued that the Department did not provide the test reports used to establish the goods as prohibited, rendering Ext.P2 order flawed. The petitioner was disadvantaged as the goods remained in Customs custody, with the supplier unlikely to take them back. The petitioner sought setting aside of Ext.P2 and remand for fresh adjudication after receiving the test reports.

3. Availability of Test Reports: The respondent's counsel contended that Ext.P2 was appealable, suggesting the petitioner could challenge it before the appellate authority. The Department assured providing the relevant test reports to the petitioner, emphasizing the availability of the reports for scrutiny.

4. Jurisdiction under Article 226: Considering the circumstances, the Court directed the 2nd respondent to furnish all test reports within a week, allowing the petitioner to draw a sample for verification. The petitioner was instructed to file an appeal against Ext.P2 within ten days, with the appellate authority mandated to decide the appeal within a month after granting a hearing to the petitioner.

This judgment underscores the importance of due process in customs matters, ensuring the right to information and fair adjudication. It highlights the role of appellate remedies and the Court's jurisdiction under Article 226, balancing the interests of the petitioner and the Customs Department. The directions issued aim to facilitate a comprehensive review of the case, safeguarding the petitioner's rights and promoting a transparent resolution of the dispute.