TMI Blog2021 (7) TMI 1066X X X X Extracts X X X X X X X X Extracts X X X X ..... fication No.45 came into force. The imported goods were examined at the Tuticorin Port by the Officers attached to the SIIB and on examination, the Officers found that the imported goods were coated paper classifiable under RITC 4810 and coated paperboard classifiable under RITC 4810 and tissue paper classifiable under RITC 4823 imported in the guise of waste paper. The request for mutilation was much after seizure of the goods. On and after 31.01.2020, stock lot goods are prohibited - the Revenue has rightly construed the prayer sought for by the Importer and passed the order dated 29.12.2020 permitting provisional release of the cargo subject to certain conditions. Therefore, no error can be attributed to the manner in which the Revenue construed the Letter dated 23.12.2020 as we are of the clear view that the Letter was for release of the goods and the request for mutilation was only an alternate submission, if the Department is not convinced for release of the goods. The Revenue agreed for release of the goods by way of provisional release subject to certain conditions. Therefore, the Importer cannot state that the order impugned in the writ petition, dated 29.12.2020 was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority and under their supervision. The Importer referred to Section 24 of the Act, which deals with power to make Rules for denaturing or mutilation of goods and pointed out that even though the Central Government has not framed any Rules pursuant to the Rule making power under Section 24 of the Act, Courts have consistently applied the said provision in favour of the Importers and referred to certain decisions, wherein it was held that if the Revenue was of the view that the goods in question were serviceable, it is within their power to convert the same into waste and scrap and permit clearance of the goods. 6. The learned Writ Court referred to a decision of the Tribunal in the case of Dewan Steel Industries and C.C.Amristar [2008 (226) E.L.T. 722 (Tri. Del)] . 7. The learned Writ Court held that when the Importer is entitled to call upon the Customs Authorities to mutilate the goods and clear them and when the Importer has not invoked the right under Section 110 of the Act, the third appellant could not have passed the order impugned in the writ petition, dated 29.12.2020 and therefore, quashed the said order. The learned Writ Court further directed the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court in the case of Garg Woollen Mills (P) Ltd. vs. Addl. Collr. of Customs, New Delhi [1998 (104) ELT 306 (SC)] . 11. Further it is submitted that when the writ petition was allowed, the investigation was in progress and as on date, the investigation has been completed and a show-cause notice, dated 07.06.2021, has been issued as to why the declared value of the cargo should not be rejected under Rule 12 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 and redetermined as ₹ 44,75,353/- under Rule 3(1) ibid ; why the bill of entry should not be reassessed and duty re-determined under Section 17(4) of the Act; why the entire cargo covered under the bill of entry should not be confiscated under Rule 111(d)(l) and (m) of the Act r/w Section 3(2) and 11 of the Foreign Trade (Development and Regulation) Act, 1992; why penalty should not be imposed under Section 112(a) of the Act and why penalty should not be imposed under Section 114AA of the Act for knowingly making a false declaration in the bill of entry. It is submitted that the showcause notice has been served on the Importer and the Importer may be directed to participate in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25) E.L.T. A152 (SC)] . 15. By placing reliance on the decision in the case of Patiala Castings Private Limited vs. Union of India [2003 (156) E.L.T.458 (P H)] , it is submitted that whenever the Revenue entertains a doubt regarding the goods, it has the option to get them mutilated, so that the Importer is not put to prejudice and the interest of the Revenue is also protected. 16. In support of the contention that the Revenue has not given any cogent reasons for discarding the pre-inspection certificate, reliance was placed on the decision of the Tribunal in the case of Prince Fortified Steels Pvt. Ltd. vs. Commissioner of Cus., Tuticorin [2019 (369) E.L.T. 1228 (Tri-Chennai)] and the decision in the case of Bansal Alloys and Metals Pvt. Ltd. vs. Commr. Of Cus. Amritsar [2018 (364) E.L.T. 269 (Tri-Chan)] . 17. Further, it is submitted that the Revenue failed to take into consideration that the Importer is not a trader, but an actual user and no due certificate will be produced by the Importer to show his bona fides . The learned counsel referred to the decision of the Tribunal in the case of Sri Renga Steel Corporation vs. Commissioner of Customs, Madu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Department of Revenue for the creation of a new tariff line with proper justification. 21. In terms of the above clarification read along with Notification No.45, dated 31.01.2020, the import of different kinds of paper description under all the 22 tariff lines covered under ITC(HS) 4810 was free. The Importers were required to mention the correct description of the paper being imported at eight digit under ITC (HS) 4810 and clearly specify quantities of paper under each 8 digit ITC (HS) Code separately. If the whole imported paper consignment is without description for each category of paper, it is a stock lot. The Customs would check as to whether the description of the imported paper matches with the 8 digit entries and they will not allow the consignment where paper of different description are intended to be imported and are bundled together under ITC HS 4810 as a stock lot. 22. The Importer filed bill of entry on 27.10.2020 well after Notification No.45 came into force. The imported goods were examined at the Tuticorin Port by the Officers attached to the SIIB and on examination, the Officers found that the imported goods were coated paper classifiable under RITC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally waster paper as per international acceptable parameters for such material. Therefore, the Importer requested the first appellant to permit clearance of the goods by taking note of the certification by Inspecting Agency (at the load port). 24. The Importer made an alternate prayer before the first appellant by stating that if the Department is not convinced, they may be permitted to mutilate the consignment as envisaged under Section 24 of the Act. Thus, the Letter dated 23.12.2020 given by the Importer to the first appellant was a request for release of the goods. Though the word provisional has not been specifically used by the Importer in the said letter, it goes without saying that the release of the imported goods sought for was to be a provisional release as the Importer was fully aware that the goods have already been seized under a Mahazar dated 11.12.2020 and investigation was proceeding. 25. The request for mutilation is an alternate prayer made before the first appellant and this prayer has been made for the first time much after the goods were seized under a Mahazar dated 11.12.2020. Therefore, the Importer is not correct in contending that they never ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner in which the Revenue construed the Letter dated 23.12.2020 as we are of the clear view that the Letter was for release of the goods and the request for mutilation was only an alternate submission, if the Department is not convinced for release of the goods. The Revenue agreed for release of the goods by way of provisional release subject to certain conditions. Therefore, the Importer cannot state that the order impugned in the writ petition, dated 29.12.2020 was not based on the recommendation given by the Importer. 28. The decisions referred to by the learned counsel for the Importer, more particularly, those decisions of the Tribunal have been rendered after the adjudication process has been completed and final orders were passed by the Adjudicating Authority or the First Appellate Authority and the correctness of the order was questioned before the Tribunal and those decisions are not arising out of the writ petitions. Therefore, those decisions of the Tribunal are distinguishable on facts and taking note of the factual position in each of those cases, the request for mutilation was granted. 29. In the case of Patiala Castings Private Limited (supra), the Court spe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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