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TMI Blog2022 (12) TMI 778X X X X Extracts X X X X X X X X Extracts X X X X ..... Fruits for home consumption imported from Dubai (Having the Counrty-of-Origin "Chile") even though the Foreign Trade (Development and Regulation) Act, 1992 read with Foreign Trade Policy 2015-20 have not put any restriction or prohibition on import of Fresh Kiwi Fruits. 2. It is the say of the petitioner that the National Plant Protection Organization in India which works under the Agriculture Department suspended the import of Fresh Kiwi Fruits from Iran w.e.f. 07.12.2021. However, for the import from Chile and Dubai, there are no such restrictions. 3. On an application being made by the petitioner, the Deputy Director, Regional Plant Quarantine Station, Kandla had issued No Objection Certificate for permitting the petitioner for clearance of imported Fresh Kiwi Fruits by observing that the same were found free from any live pest infestation. 3.1 The petitioner had communicated on 01.11.2022 requesting the respondent Nos.3 and 4 to allow the clearance of fruits for home consumption. All requisite documents including Phytosanitary certificate showing the imported goods were originated from Chile were tendered with a request for the release and when no heed was paid, he has appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he powers and follow the procedure specified therein. 5. The Customs Officer has been delegated powers to perform the function under the Food Safety Law for the customs stations where FSSAI does not have any officer. 6. It appears that the petitioner imported the consignment of Fresh Kiwi Fruits from UAE through M/s.Shahrukh & Sons Trading Company & M/s.Barka Food Stuff Trading LLC having country of origin Chile. The four inward bills of entries classifying the imported Kiwi Fruits under Chapter Heading No.08105000 of Customs Tarrif Act and the final bills of entries for clearance of goods for home consumption had been filed. 7. The request was made to a supplier of UAE to provide Country of Origin Certificate issued by Chile, so that they could be produced before the Customs Authority to establish that the goods were the origin of Chile and can be compared with the certificate of Phytosanitary issued by UAE. 8. The petitioner also approached the Office of Deputy Director of Regional Plant Quarantine Station, Gandhidham seeking permission for issuance of "No Objection" Certificate. As per Standard Operating System, it inspected the consignments and the authority found that the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Chile are mentioned in the other certificates and therefore, according to the respondent, the documents could be the forged documents showing the Country-of- Origin of Chile. Another importer M/s. Saify Enterprise also has used the said Phytosanitary certificate. They are also suspicious about the Phytosanitary certificate bearing Nos.2158830 dated 26.04.2022, 2171104 dated 17.05.2022 & 2167596 dated 11.05.2022. The vessel has reached at Mundra Port on 05.10.2022, it takes about 04 to 05 days from Jabel Ali Port, Dubai to Mundra Port. Therefore, also it has suspected the certificates. 10. Relying on the decision of the Madras High Court in Writ Appeal No.377 of 2016 in Malabar Diamond Gallery Pvt. Ltd. vs. Additional Director, DRI Chennai & Ors it has urged that the discretion is given to the concerned officer. The import of Iranian Kiwi since is prohibited in India from December 2021, by no means, the same can be permitted. 11. We have heard extensively the learned advocate, Mr.Hardik Modh for the petitioner and learned standing counsel Mr.Priyank Lodha for the department. 12. We had taken up the matter for final hearing at the admission stage considering the nature of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... phs as true; or (c) allowing to draw representative samples of such goods, in the presence of the Magistrate, and certifying the correctness of any list of samples so drawn. (1C) Where an application is made under sub-section (1B), the Magistrate shall, as soon as may be, allow the application.] (2) Where any goods are seized under sub-section (1) and no notice in respect thereof is given under clause (a) of section 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized: [Provided that the Principal Commissioner of Customs or Commissioner of Customs may, for reasons to be recorded in writing, extend such period to a further period not exceeding six months and inform the person from whom such goods were seized before the expiry of the period so specified: Provided further that where any order for provisional release of the seized goods has been passed under section 110A, the specified period of six months shall not apply.] (3) The proper officer may seize any documents or things which, in his opinion, will be useful for, or relevant to, any proceeding under this Act. (4) The person from whose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rough which it may pass and bearing in mind, the perishable nature of the goods, we do not deem it appropriate to continue the stage when the consignment imported is seized. Therefore, taking a balanced view, since the decision of this Court in case of Besto Tradeling Limited vs. Principal Commissioner of Customs in Special Civil Application No.1796 of 2022 this consignment is to be returned. This Court in a similar such matter where consignment had come from Pakistan and there was a requirement for release of the same, directed the provisional release of the goods upon furnishing the Bank Guarantee, bond and undertaking subject to certain terms and conditions. This decision had not been challenged further by the department. 19. It is to be noted that Rs.21 Lakh has been already secured, by way of the tax, which has been already paid by the petitioner, in such circumstances, we are of the view that the order of provisional release of the goods upon furnishing of the Bank Guarantee, bond and the undertaking deserves to be passed subject to the following terms and conditions: (a) The petitioner shall submit a Bank Guarantee of Rs.10 Lakh (Rupees Ten Lakh Only) for a period of twel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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