TMI Blog2022 (1) TMI 818X X X X Extracts X X X X X X X X Extracts X X X X ..... h testing. The only explanation sought to be rendered by the Petitioner in the Affidavit-in-Reply is that the Petitioner did not make any request of retesting the samples by Government Laboratory or by FSSAI. On the other hand the Petitioner has rightly contended that the Petitioner came to know about such testing by DYCC only when the Order of Seizure Memo was served upon the Petitioner. However, since after issuance of the impugned Seizure Memo, which is the subject matter of one of the Writ Petition, the Respondents passed an Order for provisional release and since the Petitioner could not get any interim Order in these Petitions till date though they are pending for quite some time, we do not propose to quash the Order of Seizure Memo unconditionally. We have not expressed any views in this matter at this stage whether the Advance Ruling relied upon by the Petitioner would cover the goods in-question or not in view of the rival contentions raised by the Respondents in respect of the process followed relating to the said goods. It is an admitted position that the said DYCC could not have carried out such testing at the first instance, we are inclined to direct the Responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also the impugned order dated 13th May, 2021. The petitioner has prayed for an order and direction against the respondents to clear the goods imported by the petitioner vide Bill of Entry No. 9936145 dated 12th December, 2020 and Bill of Entry No. 2784973 dated 16th February, 2021 on execution and furnishing of a Provisional Duty Bond in terms of Section 18 of the Customs Act. 5. The petitioner is engaged in the business of import of various edible products including products of betel nut (processed supari). According to the petitioner, the said products of betel nut is classified under Chapter Head 21069030 of the First Schedule in the Customs Tariff Act, 1975. Sometime in the year 2016, the petitioner filed an application bearing no. AAR/44/CVS-1-14-2016 before the Authority for Advance Ruling, New Delhi ( AAR ) in terms of Section 28H of the Customs Act. The said Authority decided the said application on 31st March, 2017, wherein the classification of the said products was confirmed under CTH 21069030. The respondent no.5 did not prefer any appeal against the said ruling dated 31st March, 2017 under Section 28KA of the Customs Act. 6. It is the case of the petitioner t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s during the pendency of the said writ petition passed an ex-parte provisional release order in respect of the goods covered vide Bill of Entry No. 2284973 dated 16th February, 2021. The petitioner filed Writ Petition No. 7898 of 2021 inter-alia praying for writ of certiorari for quashing and setting the impugned Provisional Release Order dated 22nd October, 2021 and prayed for a writ of mandamus to assess and clear the goods imported by the petitioner and covered by Bill of Entry No. 2284973 dated 16th February, 2021 on payment of applicable duty under Chapter 21. 11. Mr.Shah, learned counsel for the Petitioner invited our attention to the Seizure Memo dated 3rd August 2021 issued by Respondent No.3 stating that the goods covered vide Bill of Entry No. 2784973 dated 16th February 2021 were examined and respective samples of goods were drawn. He submits that only after the said Seizure Memo was served upon the Petitioner, the Petitioner came to know about samples drawn by the Respondent No.3 and forwarded to DYCC for testing. He invited our attention to the Public Notices dated 23rd October 2019 and 16th June 2021, thereby issuing a list of goods under various chapters which can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said Advance Ruling given by the Authority classifying the said goods under Customs Tariff Heading 21069030. The Custom Authority thus ought to have cleared the goods on the basis of the said Advance Ruling under the same classification in view of the said Order of the Authority having attained finality. The Respondents have not challenged the said Advance Ruling. 14. It is submitted by Mr.Shah, learned counsel for the Petitioner that the Order passed by the Respondents issuing Seizure Memo is contrary to the Advance Ruling issued by the Authority. 15. Mr.Shah, learned counsel for the Petitioner placed reliance on the Judgment of the Madras High Court in the case of Isha Exmin V/s. Addl. Director General, Directorate of Revenue Intelligence (D.R.I.), Chennai 2018 (13) G.S.T.L. 273 (Mad.), filed by the Petitioner herein and would submit that similar goods were seized by the D.R.I., which are the subject matter of the present Petitions filed by the Petitioner. He relied upon paragraph Nos.10 to 14 of the said said Judgment and would submit that after adverting to the Judgment of the Hon ble Supreme Court in the case of Columbia Sportwear Co. Vs. Director of Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, Order of Seizure Memo cannot be set aside. He submits that the Respondents have no dispute that the DYCC could not have analyzed or carried out any testing of the goods in-question. The Petitioner however did not approach the Respondents for retesting of the samples in another Government Laboratory or FSSAI. 20. It is submitted by the learned counsel for the Respondents that the samples can be redrawn and can be sent to the Government Laboratory or FSSAI even at this stage. The Respondents have no objection if the entire process is expedited. He prayed that the goods shall not be directed to be released till a fresh test report is submitted by the Government Laboratory or by FSSAI, as the case may be after testing the samples. 21. In so far as the submission of Mr.Shah, learned counsel for the Petitioner on the decision of the Authority for Advance Ruling in this case in favour of the Petitioner is concerned, learned senior counsel for the Respondents submits that though the decision of the Authority for Advance Ruling is binding on the department, in this case the process relating to the goods declared in the Advance Ruling dated 31st March 2017 is different from the proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Advance Ruling relied upon by the Petitioner would cover the goods in-question or not in view of the rival contentions raised by the Respondents in respect of the process followed relating to the said goods. It is a specific case of the Respondents that there are several other Advance Rulings in respect of the same goods taking a contrary view. Whether the Judgment of Madras High Court in case of the Petitioner itself reported in 2018 (13) G.S.T.L. 273 (Mad.), would apply to the facts of this case or not can be considered after submission of the report by a Government Laboratory or FSSAI classifying the goods in-question under an applicable entry. 25. In view of the Order for fresh testing of the said goods, we have not expressed any views, whether the goods cleared by Madras Custom Authorities or by any other Authority were same as claimed by the Petitioner in this case at this stage. 26. In our view since it is an admitted position that the said DYCC could not have carried out such testing at the first instance, we are inclined to direct the Respondents to draw samples of the goods imported by the Petitioner which are subject matter of these Petitions and to send to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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