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TMI Blog2023 (2) TMI 492X X X X Extracts X X X X X X X X Extracts X X X X ..... any between Xianhe, and Schattdecor, a Chinese and a German Company respectively. The Kingdecor has two related companies Xianhe and Zhejiang in China. 2.1. The Kingdecor supplies the raw material in India through two agencies; M/s. Saraf Sales Corporation and Shah International. The petitioner imported the raw material from the Kingdecor through the agent M/s. Saraf Sales Corporation. The Respondent No. 3 carried a search operation on 11.05.2022 at the premise of the petitioner and inspected the stock of uncoated paper know as raw material at the factory premise and warehouse of the Petitioner. It detained the raw materials on the grounds of misdeclaration of producer's source and lower payment of anti-dumping duty for import from other producers from China. The panchnama stated that search and investigation was issued by the respondent no.3 dated 11.05.2022. 2.2. A detention memo was issued by the respondent no. 3 under Section 110 of the Customs Act detaining raw material on 11.05.2022 and valued the raw material at Rs. 17,87,55,684/- (Rupees Seventeen Crores Eighty Seven Lakhs Fifty Five Thousand Six Hundred Eighty Four). A supratnama for the Safe Custody of the detained raw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner also replied on 08.08.2022 to the respondent no.2 in relation to the communication of 27.07.2022 and seizure memo of 18.06.2022. The request was made on the part of the petitioner that the anti-dumping duty of the seized raw materials amounted to Rs. 88,22,040/- and the petitioner be allowed to furnish a bank guarantee amounting to the said amount of anti-dumping duty and would furnish a bond along with undertaking and the raw materials be released. It is emphatically submitted by the petitioner that the documents are proving that the raw materials have been imported from Kingdecor. 2.6. The respondent no.3 was intimated on 31.08.2022 by the petitioner regarding the further payment of Rs.50,00,000/- done to the Commissioner of Customs, Pipavav for assurance of co-operation in the ongoing investigation. The petitioner had not received any reply on the request made from the respondent no. 2 causing financial hardship since the goods were seized since 18.06.2022 and therefore, the the petition is preferred seeking following reliefs:- "(a) That this Hon'ble Court may be pleased to issue a Writ of Mandamus or an appropriate writ in the nature of Mandamus or any other appropr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -reply on behalf of the respondent no.2 is filed by the Deputy Commissioner at Customs House where he has not admitted any of the statement, submission or averments. According to him, no fundamental or legal right of the petitioner has been violated because of the action or inaction on the part of the respondent and hence, no interference would be necessary. 4.1. It is also submitted that M/s. Match Graphics Pvt. Ltd. - the petitioner, vide letter dated 20.06.2022, requested for provisional release of seized imported goods namely 'Uncoated Printing Paper' weighing 1882001 Kgs valued Rs.24,41,31,319/- which was imported through Pipavav Port seized by the DRI, Ahmedabad Zonal Unit under seizure memo dated 18.06.2022 under section 110(1) of the Customs Act, 1962. The answering respondent vide letter dated 27.07.2022 issued permission for the provisional release of the goods imported through Pipavav Port only, which were seized vide seizure memo dated 18.06.2022 issued by the Directorate of Revenue Intelligence, Ahmedabad subject to execution of Bond for Rs.24,41,31,320/- and submission of Bank Guarantee of Rs. 11,00,00,000/-. This was permitted under Section 110A of Customs A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d also on deposit of an amount of Rs. 11,00,00,000/- cash or by way of a bank guarantee. Out of the Bank Guarantee of Rs. 11,00,00,000, Rs. 6,87,77,186/- is to cover the differential duty involved on the seized goods and the remaining amount is to secure the amount of fine that may be levied in lieu of confiscation under Section 125 of the Customs Act, in addition to the penalties that may be imposed at the stage of adjudication of the case. 4.4. It is also stated that there is an alternative remedy as against the order of Commissioner of Customs, an appeal would lie under the Customs Act under Section 129A of the Customs Act, 1962. Hence, the petitioner has approached this Court without exhausting the available alternative and efficacious remedy. There is no violation of any of the rights much less any fundamental rights so as warrant any action under the writ jurisdiction before the Court. 5. The affidavit-in-rejoinder is filed by the Authorized Signatory of the petitioner. It is the say of the petitioner that vide its communication dated 19.10.2022 it had intimated the respondent no.3 regarding the payment of an amount of Rs. 13,22,040/- made to the Commissioner of Customs, Pi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Principal Commissioner of Customs or Commissioner of Customs with the reasons to be recorded in writing for a maximum period of six months. The Respondents do not have a premium over the legislative intent to grant such an extension in a mechanical manner. The order of provisional release of goods also has not been passed by the adjudicating authority. 5.4. None of the adjudicating authorities, at Jamnagar or at Mundra have passed any order for the provisional release in the capacity of an adjudicating authority. There is no quantification nor any basis for any directions which have been communicated by a person other than the adjudicating authority. The provisional release also can be done subject to fulfillment of conditions, however, no order has been communicated in terms of Section 110A of the Customs Act. An order cannot be equated with a communication of any decision. The communication for provisional release of goods by Assistant Commissioner, Customs, Mundra dated 04.11.2022 is received after the filing of the petition. The identity of the Competent Authority also has not been disclosed in such communication. 5.5. It is further averred that the adjudicating authority is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l comply with the principles of natural justice, and hence, is obligated and is under duty to record reasons and pass a speaking order. The reasons introduces clarity in an order and therefore, it is emphasized that there shall have to be a reason and that is one of the fundamentals of good administration. 5.10. Moreover, it is contested that the raw material have code "XH" instead of "KD" and hence, it is doubted by the respondent no. 3 to be not produced by Kingdecor. It has been already stated that Kingdecor is a joint venture company between Xianhe and Schattdecor and Xianhe and Kingdecor are related companies. Moreover, the Kingdecor itself on 31.05.2022 has stated that the raw materials with series "XH" and "KD" both are produced by them. It is only presumed by respondent no.3 that the raw materials of code "XH" is not produced by the Kingdecor and hence, has wrongfully alleged a different rate of duty on the import of raw materials. Hence, mere suspicion on the part of the respondent cannot be a ground for confiscating the raw materials. The respondents themselves are not sure about their investigation and hence, they are seeking time to get report on actual manufacturer fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it Currency 1 2 3 4 5 6 7 8 9 1. 48059100, 48022090 Decor Paper China PR China PR Kingdecor (Zhejiang) Co. Ltd. 116 MT US$ 2. 48059100, 48022090 Decor Paper China PR China PR Shandong Boxing Ouhua Special Paper Co., Ltd. and Zibo OU-MU Special Paper Co., Ltd. 110 MT US$ 3. 48059100, 48022090 Decor Paper China PR Any country other than China PR Any other than SI No. 1 and 2 542 MT US$ 4. 48059100, 48022090 Decor Paper Any country other than China PR China PR Any 542 MT US$ 6.3. It is quite clear that the anti-dumping duty recommended by the authority is 116 USD per MT so far as the producer Kingdecor (Zhejiang) Co. Ltd. from China in relation to the decor paper. This comes under the heading 48059100 and 48022090. 7. The Kingdecor's declaration which has come from the petitioner on 31.05.2022 also says that it is a joint venture established by Schattdecor AG from Germany and Xianhe Co., Ltd. from China on 13.09.2004 which is as follows:- "Kingdecor (Zhejiang) Co., Ltd. is a joint venture established by Schattdecor AG from Germany and Xianhe Co., Ltd. from China on September 13, 2004, which is located in Qujiang Economic Development Zo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 116 USD per matric ton to the person who is getting the uncoated printing paper or base paper from China if the manufacturer is M/s. Kingdecor (Zhejiang) Co. Ltd. 8.2. The panchnama has been carried out on 11.05.2022 and the doubt is created with regard to the goods which have been detained under Section 110 of the Customs Act after reexamination of the panchnama dated 18.06.2022. The seizure memo of 18.06.2022 had valued it at Rs. 28.07 crores. This inquiry, on the part of the respondent is not been completed so far. 9. The entire emphasis is on that the item code of the paper manufactured by the Kingdecor (Zhejiang) Co. Limited is with alphabet 'KD', the item code of the paper manufactured by the Xianhe Co. Ltd. is starting with 'XH' and the item manufactured by M/s. Zhejiang Xianhe New Materials Sales Co. Ltd. China also stats with 'XH'. It is M/s. Saraf Sales Corporation which has acted as an agent. It is the note itself which is showing that the goods were traded and supplied by M/s. Kingdecor. It is the producer which is important to known and there has been a specific declaration given based on the Kingdecor's own letter. 10. This being the case with the petitioner havin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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