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TMI Blog2024 (12) TMI 479X X X X Extracts X X X X X X X X Extracts X X X X ..... acts of the case would run thus:- 3.1. Importer M/s.Isha Exim is a proprietary Firm involved in the business of imports and local sale of spices, condiments, food items, etc., more particularly import of betel nuts, from overseas. For the purpose of the said imports, the Importer was favoured with an Import Export Code No.0214014525 issued by the Office of the Zonal Director General of Foreign Trade, Calcutta. The Importer also holds a PAN No.AFYPK9659Q, issued by the Commissioner of Income Tax, West Bengal. Besides, the Importer has been registered under the provisions of GST bearing GSTIN No.19AFYPK9659QIZS. 3.2. During the course of its business, the Importer has imported 10 consignments of Betelnuts/ Arecanuts known as 'Supari', which is classified under CTH 21069030 and governed by an Advance Ruling No.AAR/44/Cus/02/2017 dated 31.03.2017 issued in terms of Section 28 E read with Section 28 J of the Customs Act, 1962. 3.3. While so, the appellant/Department preferred an appeal before the Custom Authority for Advance Rulings ( hereinafter referred as the 'AAR'), New Delhi against the aforesaid Advance Ruling obtained by the Importer. However, vide order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e shall be carried out within a period of six (6) weeks from today". 3.7. Thereafter, samples were forwarded to the aforesaid labs and on receipt of the test results, SCN No.17/2022 dated 30.09.2022 was adjudicated vide Order-in-Original No.15/2023-Gr.1 dated 06.02.2023, by re-classifying the impugned goods under CTH 08028020 (Chapter 8) and imposed penalties allowing redemption of the impugned goods only for re-export. Meanwhile, the Importer, during the pendency of above Writ Petitions, filed six more Bills of Entry for clearance of goods declared as "Betel nut product known as Supari (Unflavoured Supari)". 3.8. Samples were drawn from all the consignments of the Importer and tested at CRCL, Chennai for determining the nature of the confiscated goods. The respondent Importer filed Writ Petition Nos. 34569, 34575, 34576, 34579, 34582 & 34584 of 2022, praying for provisional release of the imported goods covered under the aforesaid Bills of Entry. However, this Court, vide its Order dated 01.02.2023, directed the respondent/Importer to submit an application to the Department under Section 110A of the Customs Act, 1962, seeking provisional release of the goods and directed the Dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the provisional release of goods and the subsequent orders passed against the show cause notices. 4. Mr.K.Umesh Rao, learned counsel appearing on behalf of the Appellant/ Department elucidates the following:- 4.1. The main contention of the learned counsel for the appellant is that the goods imported by the Importer will be covered under Chapter 8 and not under Chapter 21 of CTH (Customs Tariff Heading). The AAR, New Delhi has passed Advance Ruling No.AAR/44/Cus/02/2017 dated 31.03.2017 holding the classification of the above goods under CTH 21069030. Since there was no remedy by way of appeal against the order of the AAR during the year 2017, the appellant vide letter dated 19.02.2020 requested the Customs Authority for Advance Rulings, erstwhile known as AAR, to re-examine the Advance Ruling dated 31.03.2017 under Section 28 K of the Customs Act, 1962 by stating that the said Advance Ruling was obtained by the Importer on mis-representation of the facts based on test report of the goods imported under the shelter of the said Ruling. However, the AAR declined to accept the representation made by the appellant. Aggrieved against the said order of AAR dated 31.03.2017, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for absolute confiscation, the provisional release under Section 12 can be made only by the said Adjudicating Authority by exercising its discretion according to the conditions and ratio laid down by the Hon'ble Apex Court in Raj Grow Impex LLP's case (cited supra). 4.5. Furthermore, the learned counsel for the appellant submitted that in view of Section 3(3) of the Foreign Trade (Development & Regulation) Act, 1992 any order issued under Section 3(3) by the Directorate General of Foreign Trade, shall be read as Notification issued under Section 11 of the Customs Act, 1962. Hence, there is an apparent error on the face of the order. In view of the same, there is no requirement of any special separate notification to be issued under Section 11 of the Customs Act, 1962 regarding "prohibition" as held by the Larger Bench of the Apex Court in the case of Agricas LLP reported in 2020 SCC Online SC 670. 4.6. Besides, the learned counsel for the appellant/Department relied upon the following judgments:- (a) Godrej Sara Lee Ltd. Vs. the Excise and Taxation Officer- Cum-Assessing Authority & Ors. in Civil Appeal No.5393 of 2010; (b) Nivaram Pharma Pvt. Ltd., vs. the Customs, E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aration containing betel nuts but not containing lime, katha (catechu) and tobacco would fall under Chapter 21 and not under Chapter 8. It has also been held that the findings of the CAAR are just and proper and does not warrant any interference in that appeal. 5.2. The learned Senior Counsel for the respondent Importer emphasized upon Section 28J(2) of the Customs Act, 1962. The Advance Ruling dated 31.03.2017 that was passed by AAR in favour of the respondent, stood modified vide Section 92 of the Finance Act, 2022. Amended Section 28J(2) of the Customs Act, 1962, now reads as under:- "(2) The advance ruling referred to in sub-section (1) shall remain valid for three years or till there is a change in law or facts on the basis of which the advance ruling has been pronounced, whichever is earlier; Provided that in respect of any advance ruling in force on the date on which the Finance Bill, 2022 receives the assent of the President, the said period of three years shall be reckoned from the date on which the said Finance Bill receives the assent of the President." As per the proviso to amended Sub-Section (2) to Section 28J of the Customs Act, 1962, as amended by Section 92 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch W.P.No.30426 of 2022 filed before the Single Judge of this Court, also came to be dismissed vide its order dated 22.12.2023, thereby upholding the Advance Ruling dated 31.03.2017 and the classification of the goods imported/sought to be imported by the Importers under Chapter 21 and not under Chapter 8 of the CTH (Customs Tariff Heading). Therefore, such blatant misuse of the law, firstly, seeking re-examination of the Advance Ruling and secondly, filing a writ petition, after almost 5 years, is a sheer abuse of process vested in the said Authority, and they are liable to be hauled up for wasting the precious time of this Court as well as the dictates of Section 28 J of the Customs Act, 1962. 5.5. The learned Senior Counsel drew the attention of this Court to the Interim Order dated 16.11.2022,wherein this Court clubbed all the W.P. Nos.26225, 27828 and 30426 of 2022 and ordered to collect reports from the Doctors' Analytical Laboratories Pvt., Ltd., Navi Mumbai, and Arecanut Research and Development Foundation (R), Mangalore, Karnataka. Subsequently, the report of the Doctors' Analytical Laboratories Pvt., Ltd., Navi Mumbai dated 20.12.2022, was in favour of the declar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in 2024 (389) ELT 151 (Mad.) in the case of Commissioner of Customs, Tuticorin Vs. A K Impex and CMA (MD) No.305 dated 28.03.2024, wherein the validity of the Advance Ruling obtained by the Importers was upheld and the contrary view sought to be taken by the Department, was dismissed and set aside. The High Court of Bombay have also in Writ petition No.10512 of 2023 dated 18.12.2023; W.P.No.708 of 2024 dated 19.01.2024; and W.P.No.12648 of 2024 dated 10.09.2024, has taken a similar view. Therefore, when an Advance Ruling is obtained by an Importer such as the importers in the instant case, then, the appellant Department, has no Authority, to question the issue decided in the Advance Ruling, as the same is binding on them in terms of Section 28 J(1) of the Customs Act, 1962. 5.8. Moreover, perusal of the order under challenge in these appeals would reveal that the Advance Ruling dated 31.03.2017 which was taken up for review before the Revision Authority came to be dismissed, and it was the subject matter of W.P.No.30426 of 2022 before the Learned Single Judge, who dismissed the said writ petition. Therefore, it is very clear that the learned Single Judge has again affirmed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttention of this Court to the following judgments, relied upon by the learned counsel for the appellant/Department. (a) Godrej Sara Lee Ltd. Vs. the Excise and Taxation Officer-Cum-Assessing Authority & Ors. in Civil Appeal No.5393 of 2010. In the above said judgment, the learned Senior Counsel stated that the Appellant has relied upon the said judgment as it is heavily weighed in their favour and the Department, has quoted the said Judgment in order to justify filing of their application for re-examination of the Advance Ruling obtained by the importers and further justify the writ petition filed before the Learned Single Judge, which stood dismissed and gave a quietus and issue of classification, which anyway was not the issue before the Learned Single Judge, who merely affirmed the Advance Ruling of the Advance Ruling Authority and therefore, by no stretch of imagination the said Judgment come to the rescue of the Department. (b) Nivaram Pharma Pvt. Ltd., vs. the Customs, Excise and Gold (Control) Appellate Tribunal, South Regional Bench & Ors in W.A.No.377 of 2005; The learned Senior Counsel submitted that the above said judgment will not apply to the facts of the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perishable in nature) having been detained illegally by the appellant / Department, the Importer is clearly eligible for waiver of Demurrage and Container Detention Charges, in terms of Regulation 6(1) (1) of Handling of Cargo in Customs Areas Regulations, 2009 read with the Judgment of the Division Bench of this Court dated 04.07.2024 in W.A.Nos. 1017 and 1058 of 2017 & Batch, and in W.P.Nos. 1885, 1890 of 2019 and the Department shall be directed to ensure that the said detention certificates for waiver of demurrage and container detention charges are scrupulously honored by the respective CFS/Liners, failing which, the Department, shall be liable to pay the demurrage cum container detention charges, in terms of the above referred writ appeal and writ petitions. 5.15. The learned Senior Counsel further drew inference to the order passed in W.P.No.10512 of 2023, which was filed by the Importer herein against the Customs Department, challenging the Order-in-Original dated 11.11.2022 passed by the Deputy Commissioner of Customs, Nhava Sheva, District Raigad, against the Advance Ruling dated 31.03.2017, which came to be allowed by the High Court of Bombay. Against the said order, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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