W.P.(C)/3147/2016 of C CUBE CONSULTING PVT. LTD. Vs UNION OF INDIA & ORS.

*IN THE HIGH COURT OF DELHI AT NEW DELHI+W.P.(C) 3147/2016, CM APPL. 13484/2016C CUBE CONSULTING PVT. LTD.

..... Petitioner

Through: Mrs. Anjali Jha Manish, Ms. SunainaPasricha and Mr. Sagar Rohatgi, Advs.

versus

UNION OF INDIA & ORS.

..... Respondent

Through: Mr. Anurag Ahluwalia, CGSC & MrSarfaraz Ahmad, G.P., for R-1/UOI.Mr. Maninder Singh, Sr. Adv. with Mr. AjitSharma, Mr. Mayank Aggarwal, Advs. for DRI.Mr. Maninder Singh, ASG, Mr. Ajit Sharma andMr. Prabhas Bajaj, Advs. for R-1 & R-3.

CORAM:HON'BLE MR. JUSTICE S. RAVINDRA BHATHON'BLE MR. JUSTICE NAJMI WAZIRIO R R

%15.12.2016

The petitioner has sought release of its goods, i.e., HOP pelletsused apparently for manufacturing of beer, imported at declaredvalue of 1.5 Euro per kg. Based upon the information received, theCustoms authorities carried out search and seizure proceedings inthree premises and detained the goods. At that stage, the petitionersought intervention of the Court for release of the goods.Thepetitioner also contended that having regard to the perishable nature

of the goods – since that had to be stored at certain temperature; itwas necessary that clear orders in this regard be made. This Courthad, therefore, by an order dated 08.04.2016 directed the respondentauthorities to ensure that the goods were kept in cold storage. Thegoods were, however, not transferred to the cold storage immediatelybut rather later on in two lots, the first on 29.04.2016 and the rest onthe 3[rd], 4[th]an 5[th]day of May, 2016.The delay was attributed toconfusion on the part of the respondent as it was obliged to ensuretransportation and storage in the cold storage warehouses and depots.The issue was complicated because the Customs authorities had madea statement/filed an affidavit in the Court and in the course of theproceedings the affidavit led to contempt notice to Customs officer(s)for non compliance of the order of 08.04.2016 and also for misleadingthe Court.As consequence some officials were asked to presentthemselves in the Court through these proceedings. direction toowas issued to the concerned officer to file detailed affidavit. Theaffidavit of the Joint Commissioner, Customs, Inland ContainerDepot, Patparganj, Delhi as well as Shri Dilip Chaudhary weretherefore filed. The materials on record further show that showcause notice was issued to the petitioner under Section 28(4) of theCustoms Act, 1962; it inter alia alleges that the declared value ismuch less than the actual value of the goods, resulting in an attempt toevade duty.The Customs authorities have proposed recovery ofamounts as well as other actions in accordance with law. Till date thepetitioner does not appear to have responded to the show cause notice.It is contended by Mrs. Anjali Jha Manish, the learned counsel

for the petitioner that the material disclosed in the form of test reportshow prima facie that the delayed transportation and storage of theimported goods has resulted in significant losses on account of thereduced value of the goods and therefore their marketability.It issubmitted that since the proceedings are pending in the Court,appropriate direction in the interest of justice, should be given. It isalso stated that since these reports were directed to be placed onrecord under order in these proceedings, the petitioner is entitled toclaim its remedies in respect of such losses.

The learned Additional Solicitor General who appears for theRevenue points to the affidavit of the respondent/custom authorities todispute these losses and submits that this Court should refrain fromintervening at this stage on account of pendency of adjudicationproceedings.AccordingtotheRevenue,thepetitionerhadundervalued the goods – as against the real value of about 7 Euros perk.g. of the imported HOP pellets, the declared value was 1.5 Euro.This Court is of the opinion that since the objective is ensuringthat procedure, in accordance with law is followed, it has beencomplied with though concededly not strictly in accordance with lawand the order dated 08.04.2016 and other proceedings.The goodswere warehoused in and cold stored on 29.04.2016 and on 4/5.5.2016,there has been substantial compliance of the direction.

As to the issue of undervaluation, it is quite apparent that thematter is subjudice before the Customs authorities and no order hasyet been made. In fact, the petitioner does not appear to have repliedto the allegations. In the circumstances, the question as to whether the

petitioner has suffered losses on account of delay in compliance of theCourt order obviously is academic. The actual value of the goods willbe apparent – at least through Customs proceedings upon the ordermade by the adjudicating authorities concerned. The other method ofcourse, will be ensuring of the release of the goods after theadjudication proceedings; its market value can be ascertained at thepoint of time it is sold. Either way, there is considerable fluidity inthe matter and the Court cannot express its view in the matter,certainly not to the extent of assessing damages or compensation –which is the only relief that can be given at this stage.

In the circumstances, the Court is of the opinion that it is opento the petitioner to pursue its civil damages in accordance with law atits option either under before or after the completion of theadjudication proceedings’ having regard to the ultimate price itrecovers for the goods. The writ petition is therefore disposed-off inthe above terms. The contempt notice is discharged.

S. RAVINDRA BHAT, J

DECEMBER 15, 2016/acm

NAJMI WAZIRI, J