TMI Blog2021 (1) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... /60425/2020 - A/60003-60004/2021 - Dated:- 13-1-2021 - MR. ASHOK JINDAL, MEMBER (JUDICIAL) Shri Sudhir Malhotra, Advocate for the Appellant Shri Rajeev Gupta, M. S. Dhindsa, Authorised Representative for the Respondent ORDER The appellants are in appeals against the impugned orders wherein the request of provisional release of imported goods under Section 110 (A) of the Customs Act, 1962 has been rejected alongwith applications for early hearing of the appeals. 2. Today, when the matters were called, the Ld. Counsel for the appellant submits that the goods are in perishable nature and live consignments have been seized; therefore, the appeals are to be heard on priority basis. 3. The Ld. AR submitted that this Tribunal has no jurisdiction to hear the appeals as the issue relates to classification and rate of duty which falls in competence of division bench of this Tribunal. 4. In rebutted the objection raised by the Ld. AR, the Ld. Counsel submits that the issue before this bench is neither involve any question of classification nor of rate of duty nor of interpretation of any exemption notification and nor of valuation, therefore, the appeals ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 63 dt. 23.01.2020 were cleared by Customs. The said factual position regarding clearance of impugned goods after investigation by SIIB has not been denied by the department, in their synopsis submitted to Hon ble Bench with a copy to appellant on 08.01.2021; though the said ground emphatically taken in the grounds of appeal. It is pertinent to mention that impugned goods after clearance by Customs no longer remain imported goods as per Section 2 (25) of Customs Act, 1962 and it reads as under: Section 2(25) imported goods means any goods brought into India from a place outside India but does not include goods which have been cleared for home consumption . In the facts and circumstances of the case, the goods cannot be seized as cleared after investigation. For argument sake, the duty if any can be demanded, if any new evidence brought on record. (iv) Ground for denying provisional release other than those taken in seizure memo. In the operative part of seizure memo, the reason for seizure has been mentioned as : In view of the above mentioned facts and circumstances, the aforesaid detained goods appears to have been imported by way o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dry Fruits and Vegeta bles We certify that the plants, plant production or other regulated articles described above were in imported in UAE (country of re-export) from see list above (country of origin) covered by Phytosanitary certificate no. see list above, original ( ) certified true copy ( ) of which is attached to the certificate; that they are packed ( ) in original ( ) new ( ) container, that based on the original Phytosanitary Certificate ( ) additional inspection ( ), they are considered to conform with the current Phytosanitary requirements of the importing country, and that during storage in UAE (Country of re-export) the consignment has not been subjected to the risk of infestation of infection The incorporation of details of Phytosanitary certificate of country of origin, in Phytosanitary certificate of country of re-export, prima facie meets the substantial compliance of law. There are no import permit required for import of impugned goods. (vi) Reg. CBEC Circular No. 35/2017 CUS The Ld. Authorized Representative of Department emphasized that provisional release of seized goods were rejected inter-alia o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the importer declined to fulfill the conditions of CBEC Circular no. 35/2017. On appeal, Ld. Commissioner (Appeals) vide order-in-appeal no. 340-2020 dt. 24.08.2020 allowed provisional release by putting stringent conditions copy of said order already supplied vide mail dt. 11.01.2021 to Hon ble Bench with a copy to Ld. CDR. (viii) The goods were seized by DRI, the demurrage and detention charges may kindly be commended for waiver as per provisions under Regulation 6 (l) of the Handling of Cargo in Customs Area Regulation, 2009 (ix) The impugned goods are perishable in nature and will become unfit for human consumption with passage of time The impugned are also not required in any investigation. The appropriate order for allowing provisional release or any other order as deemed fit in the facts and circumstance of the case may kindly be passed in the interest of justice. Submitted for kind and sympathetic consideration pl. 6. The Ld. AR for the Revenue submits as under:- A. Phytosanitary Certificate issued by the country of re-export Dubai without copy of attested copy from the country of origin :- i) Para 10(2) of Chapter III of Plant Quaranti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tosanitary Certificate for reexport issued by the country of re-export, Dubai and fumigation certificate at Dubai would suffice is against the express provisions as contained in Plant Quarantine order 2003 supra . Rather the waiver can only be granted for cogent reasons in public interest. Reliance is placed on following case laws:- (a) The Delhi High Court in case of INDIA TIMBER SEASONING PLANT vs. UNION OF INDIA--2016 (336) E.L.T. 640 (Del.) held though undoubtedly the power of relaxation is contained in the Quarantine Order, yet it has to be exercised for some cogent reasons and that too, in larger public interest. In fact, as pointed out by the Supreme Court in Union of India and Others v. Exim Rajathi India Private Limited, (2009) 16 SCC 263 = 2008 (232) E.L.T. 774 (S.C.), import of food and trees can be dangerous both for humans as well as for agriculture. This Court is also of the view that even if the fault cannot be attributed to the petitioner for non-fumigation by the exporter, the consignment in question cannot be allowed to remain in India as firstly, it would lay down a wrong precedent and secondly, nonfulfilment of mandatory condition of fumigation at exporter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions as per Board circular 35/2017:- [1]. Execute Bond for full value of seized goods. [2]. Furnish Bank Guarantee or Security Deposit to cover the following- (a) Differential duty of ₹ 1,38,39,91,144 on seized goods being provisionally release. (b) 10% of ₹ 1,38,91,144 to cover amount of redemption fine that may be levied in lieu of confiscation u/s 125 of Customs Act. (c) 25% of ₹ 1,38,91,144/- to cover amount of penalties that may be imposed. ii). The primary issue raised for determination before the Joint Commissioner as well as the Commissioner (Appeals) in the case of M/S TRB was only the provisional release of goods with regard to the security to protect the interest of revenue keeping in view the differential duty, due to goods being of Pakistan origin. Joint Commissioner and Commissioner (Appeals) have not dealt specifically with the violation of Plant Quarantine (Regulation of Import into India) Order, 2003 nor has waived the same and therefore to ask for parity on this basis in the form non submission of Plant Quarantine clearance is illogical. The statutory violations cannot be waived off like this. iii). On the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D/SMUGGLED items being in violation of any other law for the time being in force. Here there is a specific violation of Para 10(2) of Chapter III of Plant Quarantine (Regulation of Import into India) Order, 2003 which has made liable for confiscation. D. Non-compliance of special conditions of import hence prohibition confirmed by Plant Quarantine authorities:- The Assistant Director, PQ, Amritsar has confirmed vide letter dated 22.05.2020 (copy enclosed) that:- a). M/s Findoc Impex pertaining to impugned B/E No.6596563 has not even applied for clearance under the PQ information system and the clearance of goods is subject matter of the investigation by DRI. b). M/S N.K.impex has not even applied for clearance under the PQ information system for the impugned LIVE B/E No. 6887043 c) M/s TRB International has not even applied for clearance under the PQ information system for three B/E Nos 6922118/6923771/6924057 as covered in the Commr (appeals) order No 340/2020 pertaining to provisional release order 03/2020.DRI is investigating all such past clearences. E. The fact of evasion of customs duty due to goods of Pakistan origin is prima-facie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal- Remand- Established facts indicating that noticee had smuggled gold into country and he had no documents/explanation for its lawful possession - HELD : There was no scope for remand of matter to Commissioner with direction to exercise discretion to give option for redemption of gold - Section 130 of Customs Act, 1962. [para 9, 10, 11, 12] (e) The Delhi High Court in case of Mala Petrochemicals Polymers v. AD.G., Directorate of Revenue Intelligence - 2017 (353) E.L.T. 446 (Del.) held Provisional release of seized goods - Judicial review - Scope of - Powers under Section 110A of Customs Act, 1962 involve exercise of discretion, and scope of its judicial review limited to examination as if discretion exercised rightly, fair and reasonable in circumstances, and not based on irrelevant material. [para 23] .Here the court had ordered for full payment of differential duty and reduced additional BG to 15% from 30% towards penalty. However SC stayed the reduction of BG . Additional case laws and documents enclosed:- (i) Letter dated 22.05.2020 addressed to Deputy Director, DRI by Assistant Director, Plant Quarantine, Amritsar.. (ii) Faridabad CT Scan Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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