2019 (11) TMI 625 - HC - Customs

Rejection of request to re-export the goods - imposition of ADD - HELD THAT - In terms of sub-section (25) of Section 2 of the Customs Act, once the goods are cleared for home consumption, they no longer retain the identity of the imported goods. Under the circumstances, once the goods have been cleared, such goods no longer remain to be imported goods and hence, there is no question of re-exporting the goods as has been stated in the affidavit-in-reply filed on behalf of the respondents. It is true that prior to the provisional release of the goods and payment of the relevant duties, the petitioner had sought re-export of such goods, which request came to be turned down. However, now, what the petitioner seeks is to export of goods after the same have been cleared for home consumption. The impugned communication, dated 29-11-2018 of the third respondent - Assistant Commissioner of Customs, Valvada informing the petitioner that its request for re-export of goods has been rejected by the Principal Commissioner, Customs, Ahmedabad, is hereby quashed and set aside - Petition allowed.

Summary

Issues Involved:
1. Rejection of re-export request by the Customs authorities.
2. Classification and payment of anti-dumping duties.
3. Legal status of goods cleared for home consumption.
4. Allegation of misdeclaration of goods by the petitioner.
5. Denial of export based on potential future irregularities.

Detailed Analysis:

1. Rejection of Re-export Request:
The petitioner challenged the communication dated 29-11-2018 from the Assistant Commissioner of Customs, Valvada, which informed the petitioner that its request for re-export of goods had been rejected by the Principal Commissioner, Customs, Ahmedabad. The petitioner argued that the goods in question are freely exportable and that their application for export should not have been rejected by the Customs authorities.

2. Classification and Payment of Anti-dumping Duties:
The petitioner imported 77,000 pieces of Aluminium Plates (PS) and declared them under S.H. No. 3701 30 00 of the Customs Tariff, attracting an anti-dumping duty of $0.22 per kilogram as per Notification No. 25/2014-Cus. (ADD). However, upon inspection, it was found that the goods were Aluminium CtCP plates, which attract a higher anti-dumping duty of $4.87 per square metre under Notification No. 51/2012-Cus. (ADD). The petitioner complied with the conditions laid down by the Customs authorities, including payment of the higher anti-dumping duty, furnishing a bond, and a bank guarantee.

3. Legal Status of Goods Cleared for Home Consumption:
The court noted that the goods had been provisionally released for home consumption, and as per sub-section (25) of Section 2 of the Customs Act, once goods are cleared for home consumption, they no longer retain the identity of imported goods. Thus, the goods in question were no longer considered imported goods and were freely exportable.

4. Allegation of Misdeclaration:
The respondents argued that the petitioner had misdeclared the goods with an intent to evade payment of the appropriate anti-dumping duty. They contended that allowing the petitioner to re-export the goods would set a wrong precedent. However, the court found that the petitioner had complied with all the conditions for provisional release and paid the applicable duties. The court also noted that the petitioner was willing to correct the description of the goods in the Shipping Bill to "Computer to Conventional Plates."

5. Denial of Export Based on Potential Future Irregularities:
The respondents argued that denying the export request was necessary to deter the petitioner from committing similar irregularities in the future. The court, however, found no statutory provision that would allow the respondents to prevent the petitioner from exporting the goods based on past irregularities. The court held that in the absence of any statutory bar against the export of such goods, the respondents were not justified in denying the petitioner's request.

Conclusion:
The court allowed the petition, quashing the communication dated 29-11-2018 from the Assistant Commissioner of Customs, Valvada. The respondents were directed to permit the petitioner to process the Shipping Bill for the export of the goods. The court emphasized that the goods were no longer considered imported goods and were freely exportable, and the respondents had no statutory basis to deny the export request.