DECCAN ENTERPRISES Vs. COMMISSIONER OF CUSTOMS, KOCHI

JUDGEMENT

(1.) The petitioner imported a consignment of used computer parts through the Cochin Port. According to the petitioner, although the goods are used goods, there is substantial residual life left in them, which has a market in India. But the respondent refuses to allow the petitioner to clear the goods on the ground that the imported goods comprises of hazardous electronic waste. The matter was taken in appeal before the Commissioner of Customs (Appeals). By Ext. P4 order dated 12 -10 -2011, the Commissioner of Customs (Appeals) allowed the appeal to redeem the goods for home consumption on payment of redemption fine of Rs. 1 lakh and penalty of Rs. 50,000/ -. The grievance of the petitioner in this writ petition is that despite the appellate order, the respondent is not permitting clearance of the goods, although the petitioner is willing to pay the redemption fine and penalty. According to the petitioner, in respect of similar goods, the Central Excise and Service Tax Appellate Tribunal has, by Ext. P2 order, already held that such goods cannot be considered as hazardous waste, relying on which only, the appellate authority has passed Ext. P4 order. Therefore, according to the petitioner, the respondent is not justified in refusing to release the goods as per the appellate order. The petitioner seeks the following relief:

(2.) The respondent has now filed I.A. No. 3757/2012 seeking to vacate the interim order. In the above circumstances, based on the pleadings already on record, which, the learned Standing Counsel for the respondent submits, are sufficient to argue the case, the writ petition was heard finally on agreement by both parties. The only contention raised by the respondent is that against the appellate order, the respondent has already approached the Tribunal with an appeal and, therefore, the goods cannot be released until the appeal is disposed of. According to the learned Standing Counsel, against Ext. P2 order also an appeal is pending before the Supreme Court of India.

(3.) I have considered the rival contentions in detail. It is settled law that filing of an appeal does not operate as a stay. The respondent has not been able to produce before me any stay order staying the appellate order directing release of the goods on payment of redemption fine and penalty. In fact, the fact that the Central Excise and Service Tax Tribunal has already decided similar cases against the Department is also not in dispute. Therefore, normally in an appeal before the same authority in respect of similar goods, the respondent is not likely to get a stay also. The learned Standing Counsel for the respondent submits that the earlier order of the Tribunal has already been taken in appeal before the Supreme Court and it is pending. I am of opinion that that is no ground to refuse the relief to the petitioner in accordance with the appellate order obtained by him insofar as there is no order staying the appellate order yet. In the above circumstances, this writ petition is disposed of with a direction to the respondent to implement Ext. P4 order and release the goods imported under bill of entry No. 2092, dated 14 -9 -2010 subject to the orders in the appeal stated to have been filed by the respondent. This shall be done within two weeks from today.