IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

CUSTOMS APPEAL NO.2 OF 2007

The Commissioner of Customs (Import) ..Appellant.

V/s.

M/s.Hyundai Heavy Industries Co. Ltd. & Ors. ..Respondents.

Mr.A.J.Rana, senior counsel with P.S.Jetly, S.D. Bhosale, H.V. Mehta for petitioner.

Mr.V.S.Nankani with M.R.Baya for respondent Nos.1, 3, 5 & 7.

Mr.S.Venkateshwaran with Ms.S.Priya for for respondent Nos.4, 6 to 14.

Mr.Karl Shroff with Subodh Skurdukar for respondent No.2.

CORAM : F.I.REBELLO AND J.P.DEVADHAR, JJ.

DATED : 18TH JULY, 2007.

P.C. :-

. Admit on the following substantial questions

of law:-

• a) Whether the CESTAT was correct in holding that the order of confiscation under section 111(j) of the Customs Act, 1962 was not legal on the ground that the importers had obtained the permissions for conversion of the vessels and the port clearance without obtaining an order permitting clearance of goods for home consumption under section 47 of the Customs Act, 1962 ?
• b) Whether CESTAT was correct in holding that clearance of the goods on the basis of the port

clearance permissions was proper despite the fact that Bills of Entry were filed by importers for home consumption under section 46 of the Customs Act, 1962 for clearance of such goods wherein permissions were statutorily to obtained for clearance of the goods as per the provisions of section 47 of the Customs Act, 1962 ?

• c) Whether the CESTAT was correct in treating the goods imported only as foreign vessels, requiring permissions for conversion and port clearance instead of treating them also as imported cargo whereas the importers had imported vessels and had filed Bills of Entry for clearance of the vessels as goods as required under section 46 of the Customs Act, 1962 for the clearance of which the compliance of the provisions of section 47 was a statutory requirement ?
• d) Whether the CESTAT was correct in holding that the confiscation under section 111(j) is not applicable since the section 111 (j) deals with permission for removal of the goods while section 47 of the Customs Act, 1962 relates to permission for clearances and nowhere in the Act the terms 'removal' and 'clearance' have been defined.
• e) Whether the CESTAT was correct in holding that the confiscation under section 111(j) was not correct since the importers had the pay orders ready for payment of duty whereas, as per section 47 of the Customs Act, 1962, the importer on filing the Bills of Entry can clear the goods only after the payment of import duty as assessed thereon and any charges payable under the Act ?

2. Ad-interim relief in terms of prayer clause (c) except the bracketed portions with the following directions:-

i. The respondent No.1 to furnish a bond for

• = : 3 : = -

the full amount of penalty and fine in favour of the appellant and further bank a guarantee for 50% of the amount of fine and penalty in favour of the appellant within a period of 6 weeks from today and shall keep the same alive pending hearing and final disposal of the appeal.

ii. The existing bank guarantee already given by the respondent No.1 to the appellant to be returned on the respondent No.1 furnishing the bank guarantee as indicated in the order.

iii. This order is subject to the final order in this petition.

3. Notice waived on behalf of respondent No.1 to 14.

(F.I.REBELL0, J.)

(J.P.DEVADHAR, J.)