TMI Blog2021 (10) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... s a wastepaper by making their own inspection or investigation without having any such declaration prior to the same. If the importer really imported the goods in question as brand new books for the purpose of selling it in the Indian market definitely, the worth of the goods would be multifold than what has been declared, that is, around 13,00,000/- rupees worth for the wastepaper, so such kind of valued goods cannot be volunteered by the petitioner to be mutilate, as that will be more loss to the petitioner than to pay the redemption fine as well as the customs duty even if ultimately the Customs Department found that it is a misdeclared good, therefore, it is to be confiscated with redemption right. This Court feel that the subsequent action to conduct an inspection on 08.07.2021, and a further inspection by a special team on 23.07.2021 followed by the seizure under mahazer, are all may be a unwarranted exercise, even if the goods in question, are to be treated only as books, they could have very well allowed the books to be mutilated for which the petitioner had already expressed his willingness on 03.07.2021 itself - merely because a seizure has been taken place, it cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as imported such kind of waste papers from a supplier from New Zealand, namely, one M/s.Oasis Imports and Export New Zealand limited. Accordingly, an agreement was reached between the petitioner and the supplier on 04.06.2021, pursuant to which 63 metric tons of waste paper and old books had been imported by the petitioner through Tuticorin Port. The consignment could reach the Tuticorin Port on 05.07.2021, however, before which, that is, on 03.07.2021, the petitioner had given a request letter to the respondent Customs Department that, since the imported goods are waste papers in the book form and therefore, if the Customs Department feel that, it should be denatured or mutilated, the same can also be undertaken as per Section 24 of the Customs Act, for which the petitioner would cooperate and whatever the expenses to be incurred and the exercise to be undertaken for mutilating the goods in question, the petitioner would spend, and the mutilation work can also be conducted in the presence of the customs officials. 4. Though such a request having been made by the petitioner on 03.07.2021, which was acknowledged or received by the respondent Customs Department, on 08.07.2021, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e released as such as per the declaration made by the petitioner otherwise, if the Customs Department feel that it cannot be treated as a waste paper, because it is in the book form, it can be mutilated and or denatured and accordingly, the same can be released. 7 .The learned Senior Counsel would further contend that, despite the definite stand having been taken by the petitioner well before the goods reached to the Port, that is, before the Customs Department takes a view as to what exactly the form of the goods in question imported by the petitioner, the petitioner since has made its stand definite and requested for even mutilation or denaturing of the goods concerned, the question of seizure of the goods does not arise. Therefore, the learned Senior Counsel appearing for the petitioner seeks indulgence of this Court to issue a direction as has been sought for. 8 .On the contrary, Mr.R.Aravindan learned Standing Counsel for the respondent Customs has relied upon the averments made in the common counter affidavit filed on behalf of the respondents, and he would point out that, in the very declaration, it has been stated by the petitioner/importer that, it is a waste p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reached to the port, by giving a letter on 03.07.2021 stating that, if at all the Customs Department wants to mutilate it, the petitioner will be ready and willing to go for such process. 12 .Even in the said letter, dated 03.07.2021, it has been definitely made by the petitioner/importer that, it is brand new book, however it is being imported for the purpose of making it as a paper pulp in its industry. Therefore, there has been a wavering statement on behalf of the petitioner/importer as to the nature of the goods imported, no indefinite stand was taken by the petitioner even in their letter, dated 03.07.2021. Only after the goods was found to be a mis-declared one prima facie after inspection on 08.07.2021, since the petitioner has produced certain communication between the supplier and the importer, dated 12.07.2021 or 13.07.2021, as those documents can only be treated as a sheer after thought, in order to overcome the clutches of the Customs Department towards either confiscate the goods or otherwise after adjudication. Therefore, the 03.07.2021 letter cannot be taken as a proper declaration on the part of the petitioner/importer, if the principle laid down in the tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds could be multifold than what has been stated in the agreement. 17 .In such case, no prudent importer would voluntarily come forward to mutilate such goods. Assuming that if the seized goods are facing the adjudication and ultimately if the Customs Department found that it is a mis- declared goods for which, there should be a customs duty, redemption penalty, etc., imposed against the petitioner/importer, instead of meeting the same, the petitioner/importer cannot loose the value of the entire goods in question to mutilate the same, if really, it is a worthy book to be sold in the Indian market, for its original market price. 18. Further, it is to be noted that, the goods have not been found as a mis-declared goods by the Customs Department before 08.07.2021, however on 03.07.2021 itself, the petitioner has voluntarily written to the respondents stating that the goods in question, are wastepaper books with covers for repulping with hard and soft cover where there has been a specific request on behalf of the petitioner that, the petitioner may be permitted to clear the consignments, however, if required, they shall denature or mutilate the imported goods as per Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21 .In normal parlance, if a paper in the book form is not going to be utilised for any reading or reference purpose, and it is going to be utilised for waste paper purpose, eventhough if it is in a new book form or a brand new book form, that can only be treated as a wastepaper. Moreover, the petitioner since has come forward voluntarily before the goods reached the port, that they are ready and willing to go for denaturing or mutilation of the goods in question, that should have been taken in to account by the Customs Department on the goods reaching the port, after verifying the goods in question comparing with the request or stand taken by the petitioner through the letter dated 03.07.2021. 22 .Merely because, in the declaration or bill of entry or bill of lading, it is stated as a wastepaper, it cannot be stated that it is a mis-declaration, unless and until the Customs Department found it as a different item not going to be utilised as a wastepaper by making their own inspection or investigation without having any such declaration prior to the same. 23 .This has been exactly pointed out as a preposition by the Hon'ble Supreme Court in the Collector of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be a unwarranted exercise, even if the goods in question, are to be treated only as books, they could have very well allowed the books to be mutilated for which the petitioner had already expressed his willingness on 03.07.2021 itself. Therefore, the argument advanced by the learned Standing counsel appearing for the Customs Department that once the goods are seized that will be followed by the procedure to be adopted in conducting adjudication after giving show cause notice, then only, the decision as to whether the goods in question are a properly declared goods or mis-declared goods can be decided, does not arise in the present case at all. Therefore, merely because a seizure has been taken place, it cannot be stated that the adjudication has to go in the present case, and therefore at this juncture only provisional release under Section 110(A) alone is possible. 28. All these procedure, which should be normally adopted in every such case may not be required in this case, in the considered opinion of this Court, in view of the peculiar facts and circumstances, where two important aspects has to be taken note of, one is that the petitioner itself is a paper manufacturi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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