TMI Blog2024 (3) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... es of 500 ml and confirms to the marking requirement as per Chapter 98 of the Customs Tariff Act. In our view, the Respondents would not be justified in not permitting provisional release of Ethanol Absolute on the basis that some investigation is being conducted. The classification has to be seen at the time of import by the Petitioner and not the use to which it is put by the buyers of the goods from the Petitioner. There is no condition in the Customs Tariff under chapter 98, it imposes such an obligation on the Petitioner. In our view, in the light of these facts, the Respondents are not justified in refusing to release the Ethanol Absolute provisionally. The Ethanol Absolute under consideration is not prohibited goods but the only dispute between the Petitioner and the Respondents relates to classification, which, as observed above, has been permitted to be cleared since last many years under CTH 98.02 by the Respondents. As correctly submitted by the Petitioner, in similar circumstances, this Court, by its Judgement in M/s. K. Raj and Co. Vs. the Union of India [ 2023 (11) TMI 531 - BOMBAY HIGH COURT] and M/s. K. Raj and Co. Vs. the Union of India [ 2024 (2) TMI 34 - BOMBAY H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of Technology, Defense Research and Development Organization, Bhabha Atomic Research Center, Diagnostic Centers, Research Laboratories, School Laboratories etc. 4. The said Ethanol Absolute has been assessed by the Respondents as Laboratory Chemical under Customs Tariff Heading 98.02 (CTH 98.02) of the First Schedule to the Customs Tariff Act, 1975, since the past three years. Further, note 3 of Chapter 98 covers all chemicals, organic or inorganic, whether or not chemically defined, imported in packing not exceeding 500 gms or 500 millilitres and which can be identified with reference to the purity, marking or other features to show them to be meant for use solely as laboratory chemicals. Note 1 of Chapter 98 provides that Chapter 98 is to be taken to apply to all goods which satisfy the conditions prescribed in Chapter 98, even though they may covered by a most specific heading elsewhere in the Schedule. The said notes 1 to 3 of Chapter 98 read as under:- Project import; laboratory chemicals; passengers' baggage, personal importation by air or post; ship stores Notes: 1. This Chapter is to be taken to apply to all goods which satisfy the conditions prescribed therein, even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... main present on the said date at the time of examination along with his Customs House Agent and Chemical Expert. 9. However, since it was not possible for the Chemical Expert to remain present on the same date of the examination on such short notice, the Petitioner, by his e-mail dated 8th September 2023, requested Respondent No. 3 to reschedule the examination to 12th September 2023. 10. Accordingly, the Ethanol Absolute was examined by the Respondents on 12th September 2023 in the presence of the Petitioner, his Customs House Agent and Chemical Expert. It is the case of the Petitioner that the Ethanol Absolute was found to be of the same description and technical grade as declared by the Petitioner. However, the report obtained by the Respondents has not been provided to the Petitioner till date. 11. Subsequent to the aforementioned examination, by his summons dated 25th September 2023, Respondent No. 4 called upon the Petitioner to appear before him on 27th September 2023, at 11.30 am, to give oral evidence and to submit the required documents. Accordingly, on 27th September 2023, the Petitioner appeared before Respondent No. 4, gave his oral evidence and submitted the documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us and the same would be communicated to the Petitioner shortly. 16. Further, by two e-mails dated 30th October 2023 and 1st November 2023, the Petitioner requested Respondent Nos. 2 to 4 to provide a No Objection Certificate for the provisional release of the Ethanol Absolute. In response to the said two emails, Respondent Nos. 2 to 4 by an e mail dated 2nd November 2023, informed the Petitioner that the Investigation Report dated 27th October 2023, in respect of Bill of Entry No. 7515045 dated 25th August 2023, was forwarded to the office of Respondent No. 5 for issuance of a Show Cause Notice. 17. On 3rd November 2023, the Petitioner received a letter dated 27th October 2023 issued by Respondent No. 2 informing him that investigation in respect of the said Ethanol Absolute was concluded by its office and an Investigation Report thereof was sent to the concerned field formation for further necessary action. The Petitioner was further informed that any further action, including request for provisional release of Ethanol Absolute, shall be communicated to the concerned field formation by the office of Respondent No. 3. 18. It is the case of the Petitioner that no Show Cause Notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble under CTH 22.07, when, admittedly, the same had been regularly assessed under CTH 98.02 by the custom authorities themselves. 25. Further, the Petitioner submitted that the imported goods satisfy the requirements of Note 3 of Chapter 98. Therefore, by virtue of Note 1 of Chapter 98, the said Ethanol Absolute had to be classified under CTH 98.02 even assuming, without admitting, that they were covered by CTH 22.07. 26. The Petitioner submits that the clearance under Section 47 of the Act had been ordered by the proper officer of customs upon satisfaction that the Mandatory Compliance Requirements Examination Instructions for CTH 98020000 appearing in the Bill of entry were fulfilled. As per Chapter Notes, CTH 98.02 covers all chemicals, organic or inorganic, whether or not chemically defined, imported in packings not exceeding 500 gms or 500 millilitres and which can be identified with reference to the purity, marking or other features to show them to be meant for use solely as laboratory chemicals. 27. The Petitioner submits that, as per the said Compulsory Compliance Requirements, for classification of the goods under CTH 98.02, the proper officer of customs has ascertained th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion in the Customs Tariff under chapter 98, it imposes such an obligation on the Petitioner. In our view, in the light of these facts, the Respondents are not justified in refusing to release the Ethanol Absolute provisionally. 33. The Ethanol Absolute under consideration is not prohibited goods but the only dispute between the Petitioner and the Respondents relates to classification, which, as observed above, has been permitted to be cleared since last many years under CTH 98.02 by the Respondents. 34. As correctly submitted by the Petitioner, in similar circumstances, this Court, by its Judgement dated 4th November 2023 in M/s. K. Raj and Co. Vs. the Union of India (Writ Petition No. 12757 of 2023) and by its Order dated 24th January 2024 in M/s. K. Raj and Co. Vs. the Union of India (Writ Petition No. 391 of 2024 ) has ordered provisional release of the seized goods on execution of a bond. We see no reason as to why similar orders ought not to be passed in the present matter. 35. For the aforesaid reasons, we pass the following orders:- a) The Petitioner is entitled for provisional release of the Ethanol Absolute under Bill of Entry No. 7515045 dated 25th August 2023 on executi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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