Nitin Nayar vs Commissioner of Customs, Tuticorin

R. Subbiah, J.—This writ petition has been filed by the petitioner for a writ of Mandamus, directing the respondents to release the Ashok Leyland lorries bearing registration Nos. TN-69-M-9087, TN-69-P-9087 and KA-01-AC-5457. It is the case of the petitioner that he is engaged in import of raw cashew nuts. On 21-1-2009 a search and seizure was carried out in the petitioner''s premises by the respondents. During search the respondents seized several documents, hard discs, laptops and lorries bearing registration Nos. TN-69-M-9087, TN-69-P-9087 and KA-01-AC-5457, etc. Thereafter, the petitioner has received a show cause notice alleging that the petitioner had imported betel nuts under the guise of cashew nuts in six containers through Tuticorin Port and illegally diverted the import laden containers to his godown for substituting the betel nuts in the containers with raw cashew nuts available in the godown, at the time of shifting the containers from Tuticorin Port to CWC Container Freight Station. The petitioner was detained under COFEPOSA and the same was challenged in HCP (MD). No. 166 of 2009. This Court, after hearing both sides, has quashed the detention order. While the petitioner was detained at Central Prison Madurai under COFEPOSA, the respondent has issued the show cause notice, dated 16-7-2009. Therefore, the petitioner has sought for time to reply the show cause notice. After being released from Central Prison, the petitioner has found that 50 sets of files, apart from the files seized, were missing from his Office. Therefore, the petitioner has preferred a complaint, dated 26-9-2009, before the Thalaimuthu Nagar Police Station. Thereafter, the petitioner has made several request to the respondents to return the documents, properties and files seized by them. But, no proper reply was given to the petitioner. The petitioner was made to run from pillar to post. Hence, left with no other alternative, he has filed the present writ petition for the relief stated supra.

The respondents have filed a counter stating that the petitioner''s concern viz., M/s. Baywoods Exim has been systematically smuggling betel nuts under the guise of raw cashew nuts from May, 2007 to January, 2009. After declaring that the containers contained raw cashew nuts, as per the import manifests, under customs shifting permission he has moved the containers from Tuticorin Port to CWC CFS for customs examination by using his own vehicles. While so, he diverted the containers enroute to his premises of M/s. Baywoods Exim and after substituting the betel nuts stuffed in the import containers with raw cashew nuts already available in the said premises by breaking open the one time locks and replacing them with the one time locks procured by him locally, sent them to the CFS. During the relevant period, the petitioner has filed 88 Bills of Entry for import of raw cashew nuts, which required import clearance from phytosanitary authorities. The reason behind these illicit imports appears to be the intention to wrongly avail duty benefit, inasmuch as betel nut is subject to 100% ad valorem duty, whereas raw cashew imports are exempted from duty. Thus, he has evaded a customs duty to the tune of Rs. 16,81,71,700/-. Hence, the vehicles of the petitioner, bearing registration Nos. TN-69-M-9087, TN-69-P-9087 and KA-01-AC-5457, were seized under Section 110 of the Customs Act, 1962, as they have been regularly used for transportation of the smuggled betel nuts and liable to confiscation under Section 115(2) of the Customs Act.

The respondents have further stated in the counter that this Court in W.P. (MD) No. 1147 of 2011, vide order dated 20-2-2012, has directed the respondents to hand over the items claimed by Shri Nitin Nayar and after receiving the documents, the petitioner shall cooperate with the respondents for passing the appropriate orders in the adjudication proceedings. The petitioner, who appeared before the DRI, Tuticorin on 20-3-2012 has refused to accept the articles through a sealed cover from Government examiner. He has not complied with the directions of this Court. Further he is not co-operating with the respondents to complete the adjudication proceedings by not replying to the show cause notice. Thus, they sought for dismissal of the writ petition.

Heard the rival submissions made on either side and perused the materials available on record.

From the careful perusal of the records, it is seen that the above said vehicles have been seized by the respondents under the Customs Act, 1962, since the petitioner is alleged to have been regularly using the said vehicles for smuggling betel nuts. In fact, after seizure, the petitioner has approached this Court in W.P. (MD) No. 1147 of 2011, vide order dated 20-2-2012, seeking for copies of the documents seized by the respondents. The above said writ petition was disposed of by this Court with a specific direction to the petitioner to furnish his reply within a period of two weeks, after receipt of the copies of the documents sought by him. It was further directed by this Court that the petitioner shall cooperate with the respondents in the adjudication proceedings for passing appropriate orders as expeditiously as possible. Now, it is the contention of the learned counsel for the respondents that though a show cause notice was issued to the petitioner as early as on 16-7-2009 and though a specific direction was given by this Court in W.P. (MD) No. 1147 of 2011, vide order dated 20-2-2012, till date he has not replied for the same. Thus, it is contented by the learned counsel for the respondents that since the petitioner has not complied with the order of this Court, the vehicles may not be released. I find some force in the submission made by the learned counsel for the respondents. When there is a specific direction that has been given by this Court as early as on 20-2-2012 to the petitioner to cooperate with the respondents, the petitioner has not given any reply even to the show cause notice itself. Thus, it is clear that he is not cooperating with the respondents in the adjudication proceedings. When the petitioner is not prepared to comply with the direction given by this Court, this Court is not inclined to grant the relief sought for by the petitioner. In view of the above, this writ petition is liable to be dismissed and accordingly dismissed. No costs.