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2018 (8) TMI 1411 - HC - CustomsRejection of release of imported goods - restricted item or not? - Biodiesel or HSD? - Held that:- What prima facie emerges is that the petitioner had placed an order for supply of Biodiesel. The specifications thereof, were that the product would contain not less than 30.1% and not more than 35.0% of Biodiesel meeting the Indian Biodiesel Specification. Correspondingly, it would contain not less than 65.0% and not more than 69.9% of Diesel meeting the Bharat Stage IV Diesel Specifications - the product, other than Biodiesel, be it HSD, was at any rate, less than 70%. The promulgation of Foreign Trade Policy in terms of Section 5 of the Act would not be sufficient to change the category of a product from being freely importable to the import of which is restricted. Such restrictions are envisaged under sub-section 2 of Section 3 of the Act. No Notification under the said provision has been issued - in the present case, the petitioner had sought a clarification from the Director General of Foreign Trade whether the import of the goods is free. The answer of the Director General of Foreign Trade, as noted, was in the affirmative. The first objection of the authorities, at this stage, therefore, would not be sufficient to permit detention of the goods. Correct declaration of the nature of imported substance - Held that:- It is nobody’s case, at least as of now, that the fuel contains more than 70% HSD or conversely, less than 30% biofuel. We have already noted that the very definition of Biofuel is that it must have not more than 70% of weight of petroleum oil or oils obtained from bituminous minerals. This is not disputed by the Department. Under the circumstances, we would not prevent the Department from carrying out further investigation. Nevertheless, only on this ground, the detention of goods cannot be permitted. Correct rate of duty - Held that:- In the facts of the case, therefore, while not preventing the Department from carrying out further investigation and adjudicating the entire issue on both counts, whether the imported goods happen to be Biodiesel as declared or HSD as complained and the correct rate of duty leviable therein, the provisional release of goods is directed subject to certain safeguards - In any case, if it is, ultimately, found that the goods were mis-declared, the Customs Act, particularly, Sections 111 and 112 therein, provide for adequate penalty and other adverse consequences. The respondents shall permit provisional clearance of goods upon the petitioner providing Bond for the difference in duty between 12% already deposited and 18% of IGST - petition disposed off.
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