TMI Blog2023 (9) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Hon'ble Supreme Court in the case of COMMISSIONER OF CENTRAL EXCISE, BOLPUR VERSUS M/S RATAN MELTING WIRE INDUSTRIES [ 2008 (10) TMI 5 - SUPREME COURT ]. There is no mandate that the goods shall be absolutely confiscated and vested with the Government. They can be released provisionally under Section 110-A of the Act pending adjudication - the Court is inclined to order a provisional release of the imported consignment of black pepper subject to petitioner furnishing suitable securities in the form of guarantee and subject to the meeting standards prescribed by the Food Safety Authority under the provisions of the Food Safety and Standards Act, 2006. The petitioner shall also pay Customs duty provisionally at Rs. 500/- per kg. The value of Rs. 500/- per kg shall be provisional. The value may be enhanced if the imported consignment of black pepper is actually of higher value. Petition disposed off. - Honourable Mr.Justice C.Saravanan For the Petitioner : Mr.Hari Radhakrishnan For the Respondent : Mr.K.S.Ramasamy Senior Standing Counsel COMMON ORDER The petitioner has filed these writ petitions on the strength of a pending writ petition be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t even if the goods are prohibited under Notification No.21/2015-2020 dated 25.07.2018 issued by the Directorate General of Foreign Trade under the provisions of the Foreign Trade (Developement and Regulation) Act, 1992, powers are vested with the proper Officer under Section 125 of the Customs Act to allow provisional clearance under section 110A by imposing redemption fine after adjudication. 6. The learned Standing Counsel for the respondent on the other hand would submit that the impugned order is well reasoned and does not requires any interference. It is submitted that the impugned order is appelable order under Section 128(1) of the Customs Act, 1961. Therefore, it is submitted that at best, the petitioner can be relegated to work out an alternate remedy before the Appellate Commissioner. It is further submitted that none of the circumstances warrant interference under Article 226 of the Consititution of India. Therefore, it is submitted that on this count also writ petitions are liable to be dismissed. 7. That apart, the learned Standing Counsel for the respondent has placed reliance on the decision of the Hon'ble Supreme Court in the case of Sheikh Mohammed Ome ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 111(d) of the Act. Any prohibition means every prohibition. In other words all types of prohibitions. Restriction is one type of prohibition. From item (1) of Schedule I, Part IV to Import Control Order, 1955, it is clear that import of living animals of all sorts is prohibited. But certain exceptions ire provided for. But rone the less the prohibition continues. In the result this appeal is dismissed with costs. Y. P. Appeal dismissed. 8. That apart, the learned Standing Counsel for the respondent has also referred to the decision of the Hon'ble Division Bench of this Court in the case of Malabar Diamond Gallery Pvt.Ltd Vs. Additional Director General, Directorate of Revenue Intelligence, Chennai rendered in 2016 (341) E.L.T. 65 (Mad). A specific reference is made to para 94 which reads as under: 94. Though the argument of the learned counsel for the appellant is that since gold is not notified, as one of the prohibited goods, by way of any notification, in the official gazette and therefore, provisional release can be ordered, we are inclined to accept the said contention, as prohibition/restriction, is inbuilt in the Customs Act, 1962. While considering t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in order to render the Black Pepper freely importable. Now, the only question arises for consideration is whether the release of goods provisionally in terms of 110A of the Customs Act in respect of the said goods can be issued. It is only valuation of the goods is in question as import of the goods valuing less than Rs. 500/- per kg.,is prohibited. 10. The learned counsel for the respondents pointed out that totally the value declared by the importer in respect of imported Black Pepper as per the Bills of Entry was Rs. 6,44,80,013/- with unit price in the range of Rs. 525/ to Rs. 523/- per kg(CIF). The re-determined value in respect of the above Bills of Entry by the Department worked out to Rs. 3,60,74,557/- with the unit price in the range of Rs. 287/- to Rs. 304/- per kg. Therefore, it was argued that provisional release of the goods can be made under Section 110(A) of the Customs Act 1962 and the guidelines issued by CBIC circular, as per the value declared by the importer for execution of bond and furnishing of bank guarantee since the case has not been adjudicated and hence, the value re-determined in the show-cause notice cannot be taken. 11. In the light of the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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