9911796707
TMI Blog2023 (9) TMI 535X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty under Section 114-AA also equivalent to the value of the goods has been imposed. 3. Brief facts giving rise to the present challenge are that the petitioner, a Proprietary Concern, is engaged in the import and trading of Petrochemicals as well as Oil products obtained from Bituminous Minerals. The petitioner holds requisite permissions and has been duly registered as required. Pursuant to Invoice dated 23.08.2021 the petitioner imported Mixed Mineral Hydrocarbon Oil from Kuwait. The description of the goods is "Mixed Mineral Hydrocarbon Oil" HS-Code 27101990. A Bill of Entry dated 11.09.2021 was accordingly filed by the petitioner at ICD Borkhedi, Nagpur. In the packing list it was stated that six containers of Mixed Mineral Hydrocarbon Oil under CTH 2710 had been imported. The Officers of the Directorate of Revenue Intelligence drew samples of the imported material from each container and the samples were sent to the Central Excise and Customs Laboratory, Vadodara - the Vadodara Laboratory on 16.09.2021. The laboratory report dated 23.09.2021 was accordingly received in which it was stated that the samples met the requirements of kerosene as per IS 1459-1974. According to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eration of the writ petition on 10.03.2023 an interim order came to be passed. By referring to Circular 30/2017-Custom as issued by the Central Board of Excise and Customs in the matter of guidelines for re-testing of samples, this Court directed the Customs Department to forward the remnant samples to the Chemical Examiner, New Customs House Laboratory, Mumbai - the Mumbai Laboratory. The report was directed to be submitted within a period of one week of the laboratory receiving the samples. Since the report could not be submitted within the time as directed, an application was filed for extension of such time which came to be accordingly granted. Accordingly, the test reports from the Mumbai Laboratory were received vide communication dated 03.04.2023. As per those reports, the samples were in the form of colourless viscous oily liquid composed of more than 70% mineral hydrocarbon oil having characteristics of Base Oil. The Directorate of Revenue Intelligence thus moved Civil Application (W) No. 1320 of 2023 seeking time to submit a second test report in terms of Circular dated 18.07.2017. The said application was allowed on 24.04.2023. The samples were then sent to Central Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on 28.05.2015. It was thus submitted that the impugned order dated 21.06.2022 passed by the Joint Commissioner of Customs was liable to be set aside and the goods seized ought to be released. 6. Shri S.N. Bhattad, learned counsel for the respondent supported the impugned order and opposed the writ petition. At the outset, the maintainability of the writ petition was challenged on the ground that the order passed by the Joint Commissioner of Customs could be challenged in a statutory appeal under the Act of 1962. There was no exceptional case to permit the petitioner to bypass that statutory remedy and approach this Court in the present writ petition. Without prejudice to the aforesaid it was submitted that notwithstanding the subsequent test reports it was clear that the classification of the goods was in dispute. The petitioner was liable to pay the duty on the imported goods and it was not a case of complete waiver. Referring to the provisions of Section 122-A of the Act of 1962 it was submitted that this aspect would require adjudication. Since such adjudication was necessary the prayers made in the writ petition were not liable to be granted. He referred to the affidavits f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms which is based solely on the report received from the Vadodara Laboratory. We may also observe that in the reply to the show cause notice, a clear stand was taken by the petitioner that the specific tests required to be done as per directions of the Senior Intelligence Officer were not undertaken by the Vadodara Laboratory. This aspect is clear on perusing the Test Memo dated 16.09.2021 and the test report of the Vadodara Laboratory. The Joint Commissioner of Customs in his order dated 21.06.2022 has not considered this relevant aspect and without dealing with the specific stand of the petitioner has proceeded to accept the test reports of the Vadodara Laboratory. 9. The grievance of the petitioner based on Circular 30/2017- Customs in the context of the prayer for re-testing was considered by this Court on 10.03.2023 and the samples were directed to be sent to the Mumbai Laboratory for analysis. It is not in dispute that the report from the Mumbai Laboratory dated 03.04.2023 indicates presence of more than 70% Mineral Hydrocarbon Oil in the samples having characteristics of Base Oil. Since the Customs Department was not satisfied with the said test report, its request for re- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kdrop when the show cause notice now does not survive, the confiscation of the goods under Section 111(d) and (m) would not be now sustainable. The goods in question are thus liable to be released. However, since it is urged by the respondent that the aspect of mis-classification and misdeclaration is required to be considered, liberty to that extent can be reserved in favour of the Directorate of Revenue Intelligence. In the light of aforesaid discussion, the following order is passed:- (A) The show cause notice dated 22.03.2022 as well as the order dated 21.06.2022 passed by the Joint Commissioner of Customs are set aside. (B) In the light of the test report received from the Mumbai Laboratory dated 03.04.2023 and the re-testing report received from CRCL, New Delhi dated 19.05.2023, the seized goods shall stand released in favour of the petitioner subject to complying with the requisite procedure in that regard. It is however open for the Directorate of Revenue Intelligence, Mumbai to take further steps based on the aforesaid test reports in accordance with the Act of 1962. (C) The amount of Rs. 8,99,770/- deposited by the petitioner shall be returned to the petitioner wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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