The Gujarat High Court has permitted the re-export of goods on furnishing Bank Guarantee of Rs.15 Crore in favour of the Customs Commissioner.
The respondent, Hazel Mechantile Ltd. imported goods declaring the same to be “Naphtha” classified under CTH 27101229. The goods were imported at the Kandla Port vide the Bills of Entry. It appears that the respondent No.2 herein – Commissioner of Customs, Kandla, was not convinced with the declaration as regards the nature of the goods. In such circumstances, the samples were drawn and those were sent for testing to the Customs House Laboratory at Kandla. The Chemical Examiner, Customs House Laboratory, Kandla certified that the sample is “Natural Gasoline Liquid”. Upon receipt of such a report from the Laboratory, the respondent No.2 confronted the respondent No.1 of having mis-declared and mis-classified the imported goods as Naphtha under the CTH 27101229.
The application filed by the respondent for the provisional release of the goods under Section 110A of the Act came to be rejected.
Mr. Nankani, the senior counsel on behalf of the respondent raised a preliminary objection as regards the very maintainability of the present writ application essentially on the ground of propriety. Mr. Nankani would submit that apart from propriety even otherwise the writ application is not maintainable as an appeal would lie before this High Court under Section 130 of the Customs Act. He would submit that such appeal under Section 130 of the Act can be entertained by the High Court only on the substantial questions of law, if involved any. Mr. Nankani pointed out that the writ application has been affirmed by the Assistant Director, DRI, Gandhidham, whereas the writ application has been filed by a higher authority i.e. the Additional Director General. He would submit that if the Assistant Director, DRI, Gandhidham thought fit to affirm the writ application then he is subordinate to the respondent i.e. the Commissioner of Customs. The entire edifice of the argument is that if the Additional Commissioner of Customs has accepted the order passed by the Tribunal then how could the DRI have thought fit to prefer a writ application challenging the order of the Tribunal.
The division bench of justice J.B.Pardiwala and Justice Nisha M.Thakore has permited the respondent to re-export the goods on the condition that the respondent No.1 shall furnish a running Bank Guarantee of an amount of Rs.15 Crore of any Nationalized Bank in favour of the respondent No.2, Commissioner of Customs, Kandla. This would definitely protect the interest of the Revenue to some extent.
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