2021 (12) TMI 197 - HC - Customs

Seeking direction to allow the first respondent to destuff the container and permit warehousing of the goods under Section 49 of the Customs Act, 1962 - also seeking to draw fresh samples in presence of the first respondent and send the sample for retesting to any accredited laboratory - HELD THAT - The Writ Court or much less this Court cannot be converted into an Executing Court to execute the order passed by the Commissioner of Customs which is admittedly now been challenged before the Tribunal. In any event, we are of the view that a workable solution needs to be worked out as the goods have been imported in September 2020 and still lying in the Customs area. It may be true that the appeal as against the order of Commissioner of Customs was filed by the department only on 29th October 2021 but the filing of the said appeal was very well within the period of limitation and for such reason the first respondent cannot compel for execution of the order passed by the Commissioner that too by filing the writ petition well within the period of limitation prescribed for filing an appeal to the Tribunal by aggrieved person against the order of the adjudicating authority. Be that as it may, now the goods have been accepted to be warehoused by the department itself conceding to such portion of the order of the Commissioner. The appellant department is directed to draw representative sample in the presence of the first respondent/importer and in accordance with the relevant procedure and send the samples for testing to the accredited laboratory in Kolkata and the charges be payable by the first respondent - Appeal allowed in part.

Summary

Issues:
Challenge to order under Customs Act, 1962 | Direction for destaffing container and warehousing goods | Retesting of samples | Enquiry on retest sample | Reimbursement of charges | Confiscation of consignment | Redemption fine | Penalty imposition | Appeal to CESTAT | Writ petition for direction | Waiver of charges | Detention certificate | Tribunal's order modification

Analysis:
The High Court of Calcutta heard an appeal filed by the revenue, Joint Commissioner of Customs (Port), against an order dated 29th September, 2021 in WPO 874 of 2021. The first respondent had imported Fabric from China, declared as Polyester Knitted Fabric, but inspection revealed discrepancies leading to a show cause notice. The Commissioner of Customs ordered reclassification, assessment, confiscation, redemption fine, and penalty. The appellant department appealed to the CESTAT while the first respondent filed a writ petition seeking directions. The Court allowed retesting of goods at the first respondent's expense and directed the appellant to consider waiving detention charges upon request for a detention certificate as per regulations. The Court modified the Writ Court's order to protect both revenue and importer interests.

The Court noted that it couldn't act as an Executing Court for the Customs Commissioner's order challenged before the Tribunal. However, to resolve the situation where goods were stuck in Customs since September 2020, the Court directed the appellant to draw samples for testing and allowed warehousing upon compliance with the directions. The Court emphasized that the order didn't prejudice the appellant's rights in the pending appeal before the Tribunal. The first respondent was given three days to request waiver of detention charges, to be decided by the appropriate authority within ten days. The Court also instructed the Tribunal to expedite the appeal hearing and consider interim relief based on the test report.

Overall, the Court partially allowed the appeal, modified the Writ Court's order, and directed actions to be taken by both parties to resolve the issues related to retesting, warehousing, and charges waiver. The Court aimed to balance the interests of revenue and the importer while ensuring compliance with legal procedures and regulations.