TMI Blog2022 (8) TMI 1148X X X X Extracts X X X X X X X X Extracts X X X X ..... l value of the goods and furnishing of bank guarantee at 50% of the differential duty considering, Duty Free Tariff Preference Scheme for Least Developed Countries (LDC) benefit - Petition allowed. - W.P.(MD). No. 13644 of 2022 and W.M.P.(MD). No. 9699 of 2022 - - - Dated:- 7-7-2022 - THE HONOURABLE MR. JUSTICE M. NIRMAL KUMAR For the Petitioner : Mr.A.K.Jayaraj For the Respondent : 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 57,600.00 Kgs, 960 bags of Boiled Supari (Betel Nut product) from Myanmar vide Invoice No.014/2021, dated 19.11.2021, from M/s. Kwan Global Company limited, Myanmar. The petitioner had declared the value of the goods at USD 1.50 per Kg and totally USD 86,400.00/- (CNF) for 57,600.00 Kgs. The above goods were supplied by M/s. Kwan Global Compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 17.01.2022, 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 CBEC, Ministry of Finance has also issued Circular in Circular No.22/2004-Customs, dated 03.03.2004, directing the authorities that in the matter of classification disputes, the consignment should be allowed to be cleared on provisional basis as a matter of right, unless the goods intended for clearance is totally prohibited or banned under any law for the time being in force or where prosecution is contemplated. In this case, the goods are Betel Nuts an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 facie, moot as to whether the above product could be categorized/utilized/understood to be 'supari'. 12. The learned counsel for the petitioner further submitted that in one of the cases pertaining to M/s.Unik Traders for a subsequent clearance, the Commissioner of Customs (Appeals-II), Chennai had passed the following order: 7. From the above discussions, I find that the adjudicating authority has denied the re-testing of the impugned goods to avoid delay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner 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 insisting on the same for getting benefits. The invoice value has been over valued to avail the benefits of the scheme. Pending classification, the release of goods cannot be made. Further under Section 110-A of the Customs Act, the quantum of security is at the discretion of the authority. 16. He submitted that the Hon'ble Supreme Court in the case of Raj Grow Impex LLP reported in 2021 (377) E.L.T. 145 (S.C.), had held that when a statutory authority is invested with discretion, the same deserves to be left for exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Boiled Supari (Betel nut product known as supari) and had classified the same under CTH 2106 90 30, instead of rightly classifying under tariff item 0802 8020, in order to evade / circumvent the prohibition imposed by the Government of India on the import of Areca Nut below a specific value. c. With respect to the prayer of the petitioner for the provisional release of the subject seized goods, it is submitted that the subject consignment has been seized under Section 110 of the Customs Act 1962. The manner of dealing with seized goods is enshrined in Section 110A of the Customs Act. Section 110A permits provisional release of the seized goods pending adjudication. However, CBIC, vide Circular No.35/2017-Cus, dated 16.08.2017 issued guidelines to the Adjudicating Authorities for dealing with provisional release of the seized goods under Section 110A of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 Commissioner of Customs (Imports) is hereby directed to release the cargo covered under Bill of Entry No.7102157, dated 17.01.2022, provisionally subject to furnishing of PD bond for full value of the goods and furnishing of bank guarantee at 50% of the differential duty considering, Duty Free Tariff Preference Scheme for Least Developed Countries (LDC) benefit. The petitioner shall furnish the Least Developed Countries Certificate at the time of assessment and the same shall be considered by the Assessing Officer at the time of assessment. 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 receip ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
