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TMI Blog2022 (2) TMI 265X X X X Extracts X X X X X X X X Extracts X X X X ..... .10547 of 2021 by the Customs, Excise and Service Tax Appellate Tribunal, Ahmedabad. B. Your Lordships be pleased to direct the Customs, Excise and Service Tax Appellate Tribunal, Ahmedabad to stay the implementation and operation of the impugned orders dtd. 03.12.2021 passed in Appeal No.C/10953/2021 and 06.01.2022 passed in Misc. Application No.10547 of 2021; C. To grant such other and further relief as the Hon'ble High Court may deem fit and appropriate in the facts and circumstances of the case." 2. It appears from the materials on record that the respondent No.1 herein imported goods declaring the same to be "Naphtha" classified under CTH 27101229. The goods were imported at the Kandla Port vide the Bills of Entry. It appears that the respondent No.2 herein - Commissioner of Customs, Kandla, was not convinced with the declaration as regards the nature of the goods. In such circumstances, the samples were drawn and those were sent for testing to the Customs House Laboratory at Kandla. The Chemical Examiner, Customs House Laboratory, Kandla certified that the sample is "Natural Gasoline Liquid". Upon receipt of such report from the Laboratory, the respondent No.2 confron ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "The impugned order directs that the petitioner is entitled to press its application for provisional release udner Section 110 of the Customs Act, 1962 and the Authorities have been directed to decide the application, in accordance with law within a period of four weeks from the date of receipt of certified copy of the order of the High Court. We hope and trust that the Authorities will comply with this direction and the petitioner would fully cooperate in this regard. We are not inclined to interfere with the impugned order. The special leave petition is dismissed. Pending application(s), if any, stand disposed of." 8. Thus, the Supreme Court, while dismissing the SLP clarified that at the most the petitioner (respondent No.1) herein can pursue its application filed for the provisional release of the goods under Section 110A of the Customs Act, 1962. 9. The application filed by the respondent No.1 for the provisional release of the goods under Section 110A of the Act came to be rejected vide communication dated 27.10.2021 (Annexure M, Page 87). 10. The respondent No.1 being dissatisfied with the decision of the respondent No.2 herein not to release the goods provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate/Public bonded warehouses may be set up in DTA as per rules, regulations and notifications issued under the Customs Act, 1962. Any person may import goods except prohibited items, arms and ammunition, hazardous waste and chemicals and warehouse them in such bonded warehouses. (b) Such goods may be cleared for home consumption in accordance with provision of FTP and against authorization, wherever required. Customs duty as applicable shall be paid at the time of clearance of such goods. The clearance of the warehoused goods shall be as per the (C) provisions of the Customs Act, 1962. FOREIGN TRADE PROCEDURES "2.36 Warehousing Facility (a) Public/Private Customs Bonded Warehouses may be set up in DTA as per Chapter-IX of Customs Act, 1962, to import items in terms of Paragraph 2.36 of FTP. On receipt of goods, such warehouses shall keep these goods for one year without payment of applicable customs duties. Goods can be cleared against Bill of Entry for home consumption, on payment of custom duty and on submission of authorization wherever, required, after an order for clearance of such goods for home consumption is issued by competent customs authorities. In case of cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 06.01.2022 in the following terms: "From the above judgments of the Hon'ble Apex Court, it is settled that the order of the Higher authority is binding on the lower authority. Accordingly, the full effect of the order should be given by the lower authority. As regard the decision cited by learned Authorised Representative in the case of Commissioner of lewe lers(supra). The Customs (Preventive), Kochi Kallarackal of that case are entirely different from the facts of this case. The Tribunal has power to pass an order under Rule 41 to implement the final order which was already passed. In the case cited by the learned Authorised Representative, the fact was that in the main petition itself the single judge of the Hon'ble High Court has released the goods despite the petition being pending before him. Therefore, the facts are different hence, the case is cited by learned Authorised Representative not clear y applicable in the facts of the present case. Accordingly, we direct the Respondent to implement the order of this Tribunal dated 03.12.2021 with immediate effect and the compliance of the same be reported on 11 January, 2022. Copies of the order be given dast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the value of the goods declared by him as directed by the Tribunal. 16. Mr. Nankani submitted that there are many other contentions available to him to be canvassed on the merits of the matter. He would submit that the Tribunal committed no error much less an error of law in passing the impugned order of provisional release of goods for the purpose of export. He laid much emphasis on the fact that his client had an export order in possession and had also received part payment against the export order. In such circumstances, the goods which were warehoused and seized by the DRI was already meant for the export. He would submit that the warehoused goods can be re-exported without payment of any customs duty under the shipping bills. 17. Mr. Nankani made a fervent appeal that this writ application may be heard by this Court on its own merits, but his client may be permitted to re-export the goods upon furnishing of some tangible security to the satisfaction of this Court, so as to protect the interest of the revenue. He would submit that any delay on the part of his client in re-exporting the goods would lead to an irreparable injury, which cannot be compensated in terms of mone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of Rs. 15 Crore shall be furnished to the respondent No.2 by 31.01.2022 without fail. For the present, we permit the respondent No.1 to proceed with the re-export of the goods on the respondent No.1 furnishing a bank guarantee of Rs. 15 Crore in favour of the respondent No.2 by 31.01.2022. The respondent No.1 be permitted to re-export the goods by using the nomenclature "Naphtha" and it is observed that using of the said nomenclature would not bind the Department (DRI) and would not entitle the respondent No.1 to raise a plea of estoppel in the proceeding that may be initiated by the DRI against the respondent No.1. 23. The authorized representative of the respondent No.1 shall file an affidavit latest by tomorrow morning stating that by 31.01.2022, the necessary bank guarantee shall be furnished to the respondent No.2. The affidavit that may be filed shall be kept with record of this case i.e. the original shall be kept in the paper book of this Court. 24. Let Notice be issued to the respondents returnable on 17.02.2022. No notice now be issued to the respondent No.1 as Mr. Modh, the learned counsel already entered his appearance. Notice be issued respondent No.2 shall be s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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