M/S ASHWIN GOLD PVT.LTD. V. COMMISSIONER OF CUSTOMS (PREVENTIVE)

WP(C)/15886/2020

AI Insights

M/S Ashwin Gold Pvt. Ltd., represented by its managing director, Sanjay Subrao Nikam, filed a writ petition against the Commissioner of Customs (Preventive) challenging the absolute confiscation of gold under the order Ext.P2. The petitioner had previously appealed this order to the CESTAT, which denied a provisional release of the confiscated gold, stating that such a decision could only be made at the final stage of the appeal. The High Court of Kerala, upon hearing the petition, concluded that the appropriate course for the petitioner is to request an expedited hearing from the CESTAT, as the tribunal has the jurisdiction to address the matter.

• Counselvise Citation: [2020] 140 COUNSELVISE.COM (IT) 732786 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 05-08-2020
• Assessment Year: misc
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: RAMAVARMA THAMBURAN; SREELAL WARRIER
• Assessee Lawyers: P A AUGUSTIAN; SWATHY
• Keywords: Absolute confiscation; CESTAT Appeal; Customs authorities; Provisional release

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR WEDNESDAY, THE 05TH DAY OF AUGUST 2020 / 14TH SRAVANA, 1942 WP(C).No.15886 OF 2020 PETITIONER: M/S ASHWIN GOLD PVT.LTD. 11/422, SANJAY NIWAS, MULAMTHURUTHY P. O., ERNAKULAM DIST. - 682 314., REPRESENTED BY ITS MANAGING DIRECTOR, SANJAY SUBRAO NIKAM. BY ADVS. SRI.P.A.AUGUSTIAN SMT.SWATHY E.S. RESPONDENT: COMMISSIONER OF CUSTOMS (PREVENTIVE) 5TH FLOOR, CATHOLIC CENTRE, BROADWAY, COCHIN - 682 031. BY ADV.SRI. RAMAVARMA REGHUNATHAN THAMBURAN,SC BY ADV.SRI. SREELAL WARRIER,SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.15886 OF 2020 2 JUDGMENT The petitioner has approached this Court aggrieved by Ext.P2 order of the Customs authorities that resulted in an absolute confiscation of gold from the petitioner. It is not in dispute that, against Ext.P2 order that was passed in 2016, the petitioner preferred an appeal before the CESTAT , and in the said appeal, he moved a petition seeking a provisional release of the confiscated gold. The said application was rejected by the Appellate Tribunal by Ext.P4 order in the year 2018, where the Tribunal was of the view that the release of the gold, which was absolute confiscated by the original authority, could not be directed through an interim order and such a decision could be taken only at the final stage of disposal of the appeal. It is in the said back drop that the petitioner has now approached this Court, two years later, seeking to set aside Ext.P2 order against which an appeal is currently pending before the CESTAT. 2.I have heard the learned counsel for the petitioner and also the learned Standing Counsel for the respondents. On a consideration of the facts and circumstances of the case and the submissions made across the Bar,I find that the appeal against WP(C).No.15886 OF 2020 3 Ext.P2 order is pending before the CESTAT since 2016, and the application for provisional release of the gold that was confiscated was rejected by the CESTAT by Ext.P4 order in the year 2018. Under the said circumstances, the remedy of the petitioner now lies in moving the CESTAT for an early hearing of the appeal and getting the same disposed by the Tribunal in which proceedings alone the petitioner can aspire to get an order for release of the confiscated gold. Accordingly, without prejudice to the right of the petitioner to move the appellate tribunal for an early disposal of the appeal, which if moved by the petitioner, I have no reason to believe will not be considered favourably by the tribunal, the writ petition in its challenge against Ext.P2 and Ext.P4 orders is dismissed. Sd/- A.K.JAYASANKARAN NAMBIAR JUDGE SJ WP(C).No.15886 OF 2020 4 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE PERMISSION DATED 14.02.13 GIVEN BY DEVELOPMENT COMMISSIONER. EXHIBIT P2 TRUE COPY OF THE ORDER IN ORIGINAL NO.COC- CUSTM-PREV-COM-01-16-17 DATED 30.05.16. EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 28.06.18 IN WRIT PETITION NO.3979/2018. EXHIBIT P4 TRUE COPY OF THE MISC. ORDER NO.C/MISC/20670/2018 DATED 06.09.18 IN C.A.NO.C/21358/2016. EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED 19.09.19 RECEIVED FROM BANK. EXHIBIT P6 TRUE COPY OF THE INCOME TAX COMPUTATION FORMS REFLECTING THE DUE AMOUNT PAYABLE BY THE PETITIONER. RESPONDENTS EXHIBITS:NIL //TRUE COPY// P.A TO JUDGE "