TMI Blog2022 (7) TMI 724X X X X Extracts X X X X X X X X Extracts X X X X ..... Duty Free Tariff Preference Scheme for Least Developed Countries (LDC) benefit. The Department shall continue their adjudication process and conclude the same without delay. The entire exercise shall be completed within a period of three (3) weeks from the date of receipt of a copy of this order. The writ petition is allowed. - W.P.(MD).No.12887 of 2022 And W.M.P.(MD).No.9144 of 2022 - - - Dated:- 7-7-2022 - Honourable Mr. Justice M.Nirmal Kumar For the Petitioner : Mr.A.K.Jayaraj For the Respondents : Mr.R.Aravindan, Senior Standing Counsel ORDER The petitioner was registered in the trade of import of Betel Nuts and they have been allotted with Import-Export Code issued by the office of the JDGFT. The petitioner has also registered under GST and also assessed to Income Tax. The petitioner had also registered with the Food Safety and Standards Authority of India. 2. The learned counsel for the petitioner submits that they have imported 27.04 Metric Tons, 338 bags of Betel Nut product known as Supari (Unflavoured Supari) from Myanmar vide Invoice No.RT/014/2022, dated 28.01.2022, from M/s.Royal Tharcho International Company limited, Myanmar. The petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods have to be detained under Section 110-A of the Customs Act, it could have been given to the petitioner allowing them to clear the goods on payment of such security. In this case, the FSSAI report as well as the Customs Lab report confirmed that the goods are Betel Nut Supari and fit for human consumption and it is not a prohibited or a banned item. In view of the same, the further detention of the goods is improper. 7. The learned counsel for the petitioner submits that the Betel Nut would fall under Customs Tariff Heading 2106 and Sub-Heading 21069030. He further submitted that in identical situations, the goods have been released in all major ports and ICDs, namely, Bangalore, Mundra, Nhavaseva and other places. He further submitted that even in the month of February 2022, many containers were released in Chennai on the same issue with regard to Betel Nut. The petitioner's goods were not released from 18.02.2022, which had caused great loss not only to the petitioner to pay demurrage charges but also to other sources from whom he had received money for trade and the interest rate is also mounting. 8. The learned counsel for the petitioner submitted that already CB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Supari/Areca Nut is classifiable under CTH 08028020, and not under 21069030. 10. That was the reason as to why the betel nuts were not classified and cleared. Thereafter, on 08.02.2022, the DRI, Delhi Zonal Unit had instructed the Chennai DRI to hand over the files to the concerned Commissionerate for necessary action. Thereafter, the goods have been released as regards to the eight importers on provisional assessment. Thereafter, the subsequent consignments not cleared citing that it is mis-declaration and wrong classification. 11. He further submitted that the Principal Bench of this Court in batch of cases decided in W.P.No.11942 of 2022 and batch etc., W.P.Nos.16260 and 16267 of 2022 as well as in W.P.Nos.16263 and 16266 of 2022, have consistently held that, Upon a comparison of the language of Chapter-8 and Chapter-21, I note that Chapter-21 is a chapter dealing with residuary food products and includes Supari. In my understanding, 'Supari', refers to coarsely cut pieces of areca nut that are edible/ingestible. The product featured in the picture extracted above, comprises split areca nuts that have not been softened for consumption. It is thus, prima f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by this Court reported in 2013 (287) E.L.T. 41 (Mad.) [Commissioner of Customs, Tuticorin Vs. Empire Exports] , the order passed by the Delhi High Court in W.P.(C) 10538 of 2015 dated 06.11.2015, the judgment reported in 2013 (297) E.L.T. 4 (P H) [Kuber Casting (P) Limited Vs. Union of India] , the order passed by this Court in W.A.(MD).No.758 of 2014 dated 20.06.2014, the orders passed by the Principal Seat of this Court reported in, 2016 (340) E.L.T. 140 (Mad.) [Green Line Vs. Commissioner of Customs, Chennai-IV] , 2015 (316) E.L.T. 199 (Mad.) [City Office Equipments Vs. Commissioner of Customs (Seaport-Import), Chennai-I] and 2020 (374) E.L.T. 507 (Mad.) [Black Gold Technologies Vs. Union of India] . 15. Mr.R.Aravindan, learned Senior Standing Counsel appearing for the respondents had filed a counter on behalf of the third respondent, which is adopted by the respondents 1 and 2. The primary consideration of the respondents is that the classification dispute cannot be decided by way of a Writ. It is an exclusive domain of the authority to arrive at the final conclusion on his assessment. The petitioner has given a mis-declaration and is insisti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;s claim that the detention of the consignment was arbitrary, illegal and bad in law, is not correct. b. Government of India, in exercise of powers conferred upon it under Section 3 of the Foreign Trade (Development and Regulation) Act, 1992, vide its Directorate General of Foreign Trade (DGFT) Notification No.20/2015-2020 dated 25.07.2018, amended the import policy of 'Areca Nut' under the tariff item 0802 80, and had prohibited the import of Areca Nuts where the Cost, Insurance, and Freight (CIF) value is less that Rs.251/- per kg, and had explicitly stated that Import of Areca Nut over and above CIF Rs.251/ per kilogram is free and import below CIF Rs.251/ is prohibited . The CIF value of the imported goods, in the instant case, is approximately Rs.114/- per kg, which is less than Rs.251/- per kg, and hence the same appears to be prohibited for import. Therefore, in view of the abovesaid notification of DGFT, it appears that the Petitioner herein had intentionally mis-declared the imported goods as BETEL NUT PRODUCT KNOWN AS SUPARI (UNFLAVOURED SUPARI) , and had classified the same under CTH 2106 90 30, instead of rightly classifying under tariff item 0802 8020, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods shall not be provisionally released. In the instant case, the seized goods under the subject consignment are prohibited goods in terms of DGFT Notification No.20/ 2015-2020 dated 25.07.2018 and therefore, provisional release of the seized goods can be decided upon only after the completion of the Adjudication proceedings under Section 122 of the Customs Act, 1962, in terms of Board Circular No.35/2017-Cus. 18. Thus, on considering the submissions made by the learned counsels and on perusing all the materials, following plethora judgments referred, it is the consistent view of this Court that in case of provisional assessment, provisional release is permissible, in fine the direction given in the aforesaid batch of Writ Petitions is extended to the present matter as well. Hence, this Court permits the petitioner to make an application for provisional release under Section 110-A, on such application, when received, shall be disposed of by the Adjudicating Authority, after hearing the petitioner and simultaneous with a prima facie determination of the classification of the commodity, within a period of two (2) weeks from the date of receipt of the application. The Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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