TMI Blog2022 (2) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... ing orders of Hon'ble Division Bench, there shall be a similar order in this matter also. To be noted, the earlier orders have been complied and there has been provisional release of the consignment which has been captured in the aforementioned order. Petition disposed off. - W.P.(MD)No.10068 of 2021 And W.M.P(MD).No.7791 of 2021 - - - Dated:- 1-2-2022 - Honourable Mr.Justice M.Sundar For the Petitioner : Mr.A.K.Jayaraj For the Respondents : Mr.R.Aravindan, Senior Standing Counsel for Customs ORDER In the captioned matter, Mr.A.K.Jayaraj, learned counsel on record for writ petitioner and Mr.R.Aravindan, learned Senior Standing Counsel for Customs (Revenue counsel) on behalf of all the respondents are before this virtual Court. 2. Learned counsel on both sides submit that the captioned matter pertains to import of Black Pepper of Sri Lankan origin, seizure of the same on alleged grounds of over valuation to circumvent a custom notification and the captioned matter pertains to release of consignment under Section 110A of 'the Customs Act, 1962 (Act No.52 of 1962)' (hereinafter 'said Act' for the sake of convenience and clari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .Isaac Mohanlal, learned Senior Advocate instructed by the Counsel on record for the writ petitioner is before me. 2.Learned Senior Counsel submits that the captioned writ petition pertains to import of Black Pepper from Sri Lanka, a similar issue came up before this Court vide W.P.(MD)No. 21469 of 2021 and the same was disposed of by this Court in and by order dated 03.12.2021. 3.Mr.R.Aravindan, learned Senior Standing Counsel for Customs who accepts notice on behalf of all the four respondents submits that there may be certain factual differences qua the aforementioned earlier order cited by learned Senior Counsel and learned Revenue Counsel requests for time to get instructions and revert to this Court. Request acceded to. 4.Registry to show the name of aforementioned learned Revenue Counsel from the next listing. 5.List on 04.01.2022.' Thereafter, there were four listings on 04.01.2022, 06.01.2022, 10.01.2022 and 11.01.2022 respectively and the proceedings made on those listings are read as follows: Proceedings dated 04.01.2022: 'Read this in conjunction with and in continuation of earlier proceedings made in previous l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 018 issued by the Directorate General of Foreign Trade (DGFT). Advancing further arguments, learned Senior Counsel submitted that the issue as to provisional release of such Black Pepper which are under seizure i.e., said consignment on grounds of alleged over valuation of invoices (allegedly to circumvent import restrictions) is no longer res integra as provisional release of similar consignments which were seized on same grounds have been directed to by way of a series of judicial orders by this Court, the said orders have been complied and consignments have been released is learned Senior Counsel's further say. It was submitted that these orders are pivoted on Section 110A of said Act. The orders placed before me are, order dated 14.07.2021 made in W.P.No.12454 of 2021, order dated 23.08.2021 made in W.P(MD) No.13790 of 2021 and order dated 03.12.2021 made in W.P(MD) No.21469 of 2021. 4. In response to the aforementioned arguments, Mr.B.Vijay Karthikeyan, learned Senior Standing Counsel for Customs (Revenue Counsel) drew the attention of this Court to Board Circular No.1/2011 dated 04.01.2011 and Board Circular No.35/2017 dated 16.08.2017. To be noted, 'Board' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the present case also. Accordingly, I am of the view that this writ petition can be disposed of with the following order: (i)that the impugned order is set aside for the reasons discussed above and in view of the same, the respondent is hereby directed to pass orders for releasing the goods in question by way of provisional release of course by imposing the following conditions: that the petitioner shall pay the entire customs duty and also to execute a bank guarantee for interest, penalty or charges that may be charged and in this context, the respondent before passing such order for provisional release, shall quantify the amount, which may be imposed by way of penalty and charges etc., on the petitioner and equal to that amount, the bank guarantee shall be obtained from the petitioner and after getting the same, the goods in question shall be released by way of provisional release. (ii)Further, this Court wants the respondent Customs Department to complete the adjudication process at the earliest, for which, the petitioner shall cooperate without taking any unnecessary adjournments and after completing the adjudication process at the earliest, within a rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Supreme Court vide order dated 08.05.2019 sent the matter back to the High Court. The Single Judge thereafter decided the matter by an order dated 09.07.2019 in W.P(MD).No.15575 of 2019. It may not be necessary to dilate any further on facts or trajectory as Unik Traders case is clearly distinguishable on facts that being a case of disputation qua Certificate of COO for a consignment of Aracknut. The case on hand is on a entirely different footing. 8. In this regard, this Court reminds itself of the oft cited celebrated Padma Sundara Rao case (Padma Sundara Rao v. State of Tamil Nadu) reported in (2002) 3 SCC 533, wherein a Constitution Bench of Hon'ble Supreme Court wherein the manner in which case law precedents have to be looked into has been articulated, relevant paragraph in Padma Sundara Rao case is paragraph 9 and the same reads as follows: ' 9......... There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington v. British Railways Board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso seek a direction to the respondents to release the goods provisionally in terms of Section 110A of the Customs Act 1962 (in short 'Act') and issue Demurrage-cum-Detention Waiver Certificate for waiver of Demurrage and Container Detention Charges, in respect of the said goods in terms of Section 6(1)(l) of Handling of Cargo in Customs Areas Regulations 2009 read with Regulation 10(1)(l) of Sea Cargo Manifest and Transhipment Regulations, 2018. 3. The petitioner has imported five consignments vide Bill of Entry Nos. 3185706 dated 17.03.2021, 3212240 dated 19.03.2021, 3256382 dated 23.03.2021, 3256389 dated 23.03.2021 and 3308760 dated 26.03.2021. The petitioner sought release of the consignments, both before the DRI as well as the authorities under the Customs Act, being the Commissioner of Customs as well as the Chief Commissioner of Customs. A detailed communication of the DRI dated 26.04.2021 indicates certain concerns that the DRI had entertained in regard to the consignments imported. 4. The crux of the litigation turns upon the valuation of the consignments in question, as Notification No.21/2015-20 dated 25.07.2018 (Notification in question) permits e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 8. Based on the communication of the DRI dated 15.04.2021, the Deputy Commissioner/R2 on 05.05.2021 communicates to the petitioner that the request for provisional release was rejected by the adjudicating authority. There is some confusion as to who is the adjudicating authority in this case, as in the communications of the Deputy Commissioner of Customs, she merely refers to the rejection of request by the 'adjudicating authority' without specifying who that authority is. Petitioner before me is also unable to clarify this issue. 9. The request of the petitioner before the Chief Commissioner (who is not arrayed as a party before me) has been rejected and conveyed to the petitioner by the Deputy Commissioner under impugned order dated 25.05.2021. The order is cryptic and merely rejects the request stating that the import of the goods was prohibited as per the policy condition. It appears to me that the cart has been put before the horse, as admittedly investigation is presently on-going. 10. The crux of the apprehensions are as follows: 3. Investigation has revealed the following: The imports of Black Pepper from Sri Lanka by M/s Global ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material have been furnished that would substantiate the conclusion that the goods have been inflated in value. As far as the balance of the consideration remaining to be paid to the overseas supplier, this is a matter of negotiation between the supplier and the importer and would not concern the statutory authorities in the matter of valuation of the goods. There are also certain statements that appear to have been recorded in the course of the on-going investigation. All in all, the apprehensions expressed are, as of now, just apprehensions, and would have to be supported by tangible material in order to establish a prima facie case against the petitioner. 12. I am given to understand by the learned Senior Standing Counsels for the Customs Department as well as for the DRI that the process of investigation would take some time and cannot be hurried. 13. The commodity in question is agricultural produce. The variety of black pepper imported is stated to be specific to the region of Srilanka, an important ingredient in the making of spices used in Indian cuisine, with a short shelf life. Assuming for the sake of argument that investigation is concluded in favour of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been seized; (c) On the issue of waiver of demurrer charges, the issue is left open to be pursued by the authorities in the light of applicable rules and regulations. There shall be no order as to costs.' 6. In the light of the undisputed position that the matter is directly and squarely covered and in the light of the fact that M/s.Travancore Solvents Oils case has been made by following orders of Hon'ble Division Bench, there shall be a similar order in this matter also. To be noted, the earlier orders have been complied and there has been provisional release of the consignment which has been captured in the aforementioned order. 7. The sequitur is, the prayer in the captioned writ petition deserves to be acceded to by respectfully following the ratio of Hon'ble Division Bench in Al Qahir International case . Therefore, the captioned main writ petition and connected W.M.P are disposed of with the following directives and observations: (a) The second respondent i.e., the Joint Commissioner of Customs is directed to quantify the duty, bond amounts etc., communicate the same to the petitioner forthwith and release the said consig ..... X X X X Extracts X X X X X X X X Extracts X X X X
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