TMI Blog2022 (6) TMI 996X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 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 - 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 consignment within one week of said remittance i.e., quantified duty/bond amounts/execution of bonds by the petitioner - It is made clear that nothing contained in this order will stand in the way of an independent inquiry by the authorities in the ongoing investigation. Petition disposed off. - W.P.(MD)No.10627 of 2021 And W.M.P(MD). No.8276 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zure memo was issued on 26.10.2021 seizing the said consignment. Though no reasons have been given in the seizure memo, as the said consignment remains seized, writ petitioner has come before this Court with the captioned writ petitioner seeking release of said consignment vide said Bill of Entry. This Court issued notice on 23.12.2021 vide proceedings which reads as follows: 'Mr.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 lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts that a perusal of the counter-affidavit of the Revenue shows that the crux and gravamen of the issue is the allegation that the invoices qua said consignment have been overvalued so as to circumvent Minimum import price (MIP) of Rs.500/- per kilogram as import of Black Pepper up to the value of Rs. 500/- per kilogram is prohibited vide notification No. 21/2015-2020 dated 25.07.2018 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n'ble Division Bench. Paragraph 38 of order of Hon'ble Single Judge and paragraphs 12 to 14 of the order of Hon'ble Division Bench read as follows: Paragraph 38 of Single Judge's order: '38.In this context, the earlier order passed by the learned Judge referred to above in similar circumstances in M/s.Global Metro case, can very well be followed 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inguishable on facts as that was a case pertaining to disputation qua 'Certificate of Country of Origin' (hereinafter 'Certificate of COO' for brevity). Moreover, Unik Traders case was carried to Hon'ble Supreme Court vide Special Leave to Appeal (C) No(s).7096/2019 with SLP(C) No. 7310/2019, SLP(C) No.7320/2019, SLP(C) No.7325/2019, SLP(C) No.7332/2019 and the 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Writ Petition challenges, by way of certiorarified mandamus, communication dated 25.05.2021, which has been issued by R4/Deputy Commissioner of Customs conveying the decision of the Chief Commissioner of Customs rejecting the petitioner's request for provisional release of consignments of import of black pepper that have been seized vide seizure memo dated 03.04.2021. They also 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods'. They continue to state at paragraph 3 that 'It is herein requested that the said goods may be provisionally released as per the conditions stipulated under section 110 A of Customs Act, 1962.'. Thus the DRI before whom the investigation is stated to be on-going in regard to the valuation of the goods has expressed no objection for the release of the same. 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the Overseas Supplier would never be paid. The content of statement was corroborated by the documents found during investigation. The above facts have been evidenced by the analysis of bank statements, email communications, e-way bills and the informal accounts maintained by relevant entities. 11. No details of incriminating 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudication can proceed and the same can be carried to its logical end on its own merits and in accordance with law uninfluenced/untrammelled by any view or opinion expressed by this Court. Though obvious, I make it clear that I have not expressed any view or opinion on the merits of the matter qua allegations of which the said consignment has 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 Inter ..... 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