M/S EZEK DIGITAL PRIVATE LTD. v. Commissioner of Customs, Additional Commissioner of Customs, Deputy Commissioner of Customs (ACC) & Deputy General Manager (Cargo), Air Cargo Complex

**C.R.** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU** **WEDNESDAY,THE 24TH DAY OF OCTOBER 2018 / 2ND KARTHIKA, 1940** **WP(C).No. 28769 of 2018** ## **PETITIONER/S:** **M/S EZEK DIGITAL PRIVATE LTD. REPRESENTED BY ITS MANAGING DIRECTOR, JOJI MICHAEL, CHEMPARATHY HOUSE, MUTHALAKODAM P.O., THODUPUZHA, IDUKKI DISTRICT - 685 605.** **BY ADVS. BABY MATHEW SRI.SEBASTIAN K.JOSE** ## **RESPONDENTS:** |**1**|**COMMISSIONER OF CUSTOMS**| |---|---| ||**CUSTOMS HOUSE,**| ||**KOCHI - 682 009**| |**2**|**ADDITIONAL COMMISSIONER OF CUSTOMS**| ||**CUSTOMS HOUSE, KOCHI-682009**| |**3**|**DEPUTY COMMISSIONER OF CUSTOMS (ACC)**| ||**AIR CARGO COMPLEX, INTERNATIONAL AIR PORT,**| ||**NEDUMBASSERY, COHIN-683111.**| |**4**|**DEPUTY GENERAL MANAGER (CARGO)**| ||**AIR CARGO COMPLEX, COCHIN INTERNATIONAL AIR PORT LTD,**| ||**COCHIN AIR PORT P.O.,683111.**| ||**BY ADV. SREELAL N. WARRIER, SC, CENTRAL BOARD OF**| ||**EXCISE & CUSTOMS**| ## **OTHER PRESENT:** **SRI. S. SUJIN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC No.28769 of 2018 2 ## **JUDGMENT** Petitioner Ezek Digital Pvt., Ltd., claims to be a start-up company; it engages itself in the “display of advertisements publicly” through digital display boards, instead of flex boards. 2. Recently, Ezek imported five “visual display power screen units of 65 inches’ size” from China “for the demonstration and testing purposes”. To have the goods cleared in the Customs and released, it submitted to the third respondent a bill of entry, dated 2.07.2018, through the letter, dated 2.07.2018. It has claimed the items under the customs tariff item No. 852859900 and declared the value as Rs. 6,01,242/-. 3. But the Customs authorities insisted that Ezek must produce BIS registration. Then, the Company informed the 2[nd] respondent that the imported goods are “for demonstration and testing purposes” and that for that purpose, BIS registration is not required. Even so, the third respondent issued a showcause notice under Section 124 of the Customs Act, 1962. 4. Indeed, Ezek had to show cause to the Assistant/Deputy Commissioner of Customs in 13 days why the goods imported should not be confiscated and penalty should not be imposed under Sections 111 (d) and 112(a) of the Customs Act. Ezek replied. As the goods imported have WPC No.28769 of 2018 3 been lying in the Air Cargo Complex from 30.06.2018, the Deputy General Manager(cargo), Kochi International Airport, issued a notice to Ezek under Section 48 of the Act. So the Company has filed this writ petition. Submissions: 5. Sri Baby Mathew, the learned counsel for Ezek, has termed the show-cause notice under Section 124 of Act arbitrary and illegal. According to him, the respondents themselves are not sure whether the imported goods are liable to be confiscated, for they have so far not seized them. Sri Mathew's principal contention is that the respondents 1 to 3 have issued the showcause notice without seizing the articles; so the notice is bad in law. He also stresses that Ezek imported the goods only for trial and demonstration. And it needs no BIS certification. 6. In the end, Sri Baby Mathew asserts that the respondents must, at least, provisionally release the goods, as mandated in section 110A of the Act. Respondents’: 7. Sri Sreelal Warrier, the learned Senior Standing Counsel for the Customs, contends that Ezek has contracted with Thodupuzha Municipality and secured right to install digital screens at specified points WPC No.28769 of 2018 4 in the Municipal limits. And only to fulfil its contractual obligations has Ezek imported the goods from China. According to him, Ezek initially informed the 3[rd] respondent that it had imported the goods for “trial phase implementation.” But later, it changed its stand. Only as an afterthought, Sri Warrier asserts, Ezek has contended that the goods are for the “testing and demonstration purpose”. The learned Standing Counsel stresses that Ezek is under a statutory obligation to obtain BIS registration for the goods. 8. Sri Warrier draws my attention to the Foreign Trade Policy 2015-20. Then he submits that the goods not complying with BIS Act, 2018, cannot be released. On facts, he also reminds the Court that Ezek had imported samples of the same goods earlier. In other words, there cannot be repeated import in the name of testing and demonstration. 9. Besides contending that the writ petition is premature, the learned Standing Counsel, to suggest a way out, has submitted that the authorities will conclude the very adjudication on merits with no delay if Ezek cooperates. In the end, Sri Warrier emphasises that Ezek has approached this Court without exhausting the alternative remedy under the Act. WPC No.28769 of 2018 5 Discussion: 10. Ezek’s imported electronic goods have been seized. The Customs authorities have insisted that it should secure BIS registration for the goods. Ezek, on the other hand, maintains that the import was for testing and demonstration purpose. But the authorities refer to Ezek’s previous communication to assert that it changed its stand on the purpose of import, as an afterthought. The purpose of import and the need for BIS registration or certification are disputed questions of fact. In fact, the former influences the latter. And Ezek’s earlier import, too, may play a role. 11. The Customs Act, 1962, as seen, provides for an effective Appellate mechanism. Any person aggrieved by any Order or decision passed by a Lower Adjudicating Authority is entitled, under Section 128 of the Act, to appeal against it before the Commissioner of Customs [Appeals]. Later on, if the grievance subsists, that person, under Section 129, can appeal to the Customs, Excise and Service Tax Appellate Tribunal. 12. A statute may provide to an aggrieved person an efficacious remedy through an appeal to the prescribed Authority and a second appeal to the Tribunal. Only after exhausting them can an aggrieved person knock the High Court’s doors. So it not for the High Court, holds the Supreme WPC No.28769 of 2018 6 Court in Titaghur Paper Mills Co. Ltd v. State of Orissa[1] , to exercise its extraordinary jurisdiction under Article 226 of the Constitution at the first instance. It cannot ignore, as it were, the complete statuary machinery. 13. Quoting with approval Titaghur Paper Mills, the Supreme Court in Assistant Collector of Central Excise v. Dunlop India Ltd.[2] , has observed that Article 226 is not meant to short circuit or circumvent statutory procedures. It is only where statutory remedies are ill-suited to meet the demands of extraordinary situations, recourse may be had to Article 226 of the Constitution. Dunlop India illustrates a couple of possible instances: where the very vires of the statute is questioned, or where private and public wrongs are so inextricably mixed up, or where the prevention of public injury and the vindication of public justice require immediate judicial intervention. Yet, Dunlop India further cautions that the Court, even then, must have a good and sufficient reason to bypass the alternative remedy provided by the statute. Surely matters involving the revenue where statutory remedies are available are not such matters. 14. Pertinently, Dunlop India takes judicial notice that most petitions under Article 226 of the Constitution are filed solely to obtain interim > 1 [1983] 142 ITR 663 (SC) 2 AIR 1985 SC 330 WPC No.28769 of 2018 7 orders and to prolong the proceedings. The practice needs to be strongly discouraged. Under these circumstances, I decline to entertain the Ezek’s plea, by invoking this Court’s extraordinary jurisdiction under Article 226, for Ezke does have an efficacious alternative remedy. But I hold that the respondent authorities will hear Ezek’s representative and dispose of its claim for the release, provisional or otherwise, of the imported goods, expeditiously, in one week after their receiving a copy of the judgment. **Sd/-** **DAMA SESHADRI NAIDU** **JUDGE** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE CERTIFICATE OF RECOGNITION ISSUED BY CDIPP** **EXHIBIT P2 TRUE COPY OF THE COMMERCIAL INVOICE ISSUED BY LDY POWER COMPANY, LIMITED.** **EXHIBIT P3 TRUE COPY OF THE LETTER OF THE PETITIONER ADDRESSED TO THE 3RD RESPONDENT.** **EXHIBIT P4** **TRUE COPY OF THE BILL OF ENTRY NO.7040407 DATED 2.7.2018 SUBMITTED BEFORE THE 3RD RESPONDENT.** **EXHIBIT P5** **TRUE COPY OF THE REPLY DATED 12.7.2018 ADDRESSED TO 2ND RESPONDENT ADDITIONAL COMMISSIONER OF CUSTOMS.** WPC No.28769 of 2018 8 |**EXHIBIT P6**|**TRUE COPY OF THE CIRCULAR DATED 18.2.2018.**| |---|---| |**EXHIBIT P7**|**TRUE COPY OF THE SHOWCASE NOTICE DATED**| ||**30.07.2018**| |**EXHIBIT P8**|**TRUE COPY OF THE REPLY DATED 25.08.2018.**| |**EXHIBIT P9**|**TRUE COPY OF THE NOTICE DATED 6/8/2018**| ||**ISSUED BY THE 4TH RESPONDENT**|