2023 (12) TMI 1021 - HC - Customs

Provisional release of perishable goods - apples - petitioner has submitted that N/N. 5/2023 was stayed by the Kerala High Court referring to some interim orders passed in other writ petitions, wherein although as fairly stated, the challenge in such petitions was not to the Notification No. 5/2023 concerning the import of apples, but to a notification on spices. HELD THAT - No case is made out by the review petitioner for this Court to exercise its review jurisdiction for more than one reason. The grounds as raised in the review petition, are quite alien to the orders passed by us on the proceedings of which a review is sought. Even otherwise such was not the case of the petitioner when we decided the writ petition. Further, the order passed by the Kerala High Court dated 11th July 2023 which is in the respondent s (original petitioner s) own case staying Notification No. 5/2023 continues to operate even today and the same has not been disputed by the review petitioner. The legal position as brought about by virtue of the stay to the notification is to the effect that the department can foist the said notification and refuse clearance of the goods (apples) by applying such notification. Once the notification is stayed by the High Court, such order would be operational and binding on the department all over considering the well settled principles of law as laid down by the Supreme Court in KUSUM INGOTS ALLOYS LTD. VERSUS UNION OF INDIA 2004 (4) TMI 342 - SUPREME COURT . Thus the department could not be heard to say that the said order passed by the Kerala High Court is not binding on the department. Perusal of order under review makes it clear that the department refused to clear the import of apples relying on the Notification No. 5/2023 which itself was stayed by the Kerala High Court in the petitioner s own case. Once such position had continued to operate, the review petitioner cannot argue that such stay on the said notification ought to be considered to have been impliedly vacated in the Kerala High Court adjudicating on a similar notification in relation to spices. This would be a misconceived approach on the part of the Department. There are no merit to review orders applying the well settled principles of law in the exercise of review jurisdiction under Order 47, Rule 1 of the Code of Civil Procedure, 1908 - The Review Petition is accordingly dismissed.

Summary

Issues involved:
The judgment deals with a review petition filed by the revenue seeking a review of an order directing the provisional release of perishable goods, specifically 'apples,' due to a stay on Notification No. 5/2023 by the Kerala High Court.

Details of the judgment:

Issue 1: Stay on Notification No. 5/2023
The review petitioner argued that the stay on Notification No. 5/2023 concerning apples by the Kerala High Court should not apply based on a decision regarding a different notification on spices. However, the High Court found that the stay on the notification remained in force, making it binding on the department and applicable to imports in all locations, not just Kerala. The court emphasized that the legal position established by the stay order must be respected, and there was no error apparent on the face of the order.

Issue 2: Review Jurisdiction
The court determined that the review petitioner failed to establish any grounds for the court to exercise its review jurisdiction. The grounds raised in the review petition were deemed irrelevant to the original orders, and the stay on Notification No. 5/2023 continued to be in effect. The court emphasized that the decision of the Kerala High Court on a different notification could not be used to review the original order, and the review petition was dismissed based on well-settled legal principles.

In conclusion, the High Court dismissed the review petition, stating that there was no merit to review the orders based on the established legal principles under Order 47, Rule 1 of the Code of Civil Procedure, 1908. No costs were awarded in this matter.