2021 (1) TMI 454 - AT - Customs

Rejection of request of provisional release of imported goods - doubt in Country of origin - Section 110 (A) of the Customs Act, 1962 - HELD THAT - Admittedly, the goods in question were cleared for home consumption, therefore, at the time of importation the assessment has been made after investigate the goods, in that circumstances, on mere presumption or on the basis of third party evidence, it creates doubts that the country of origin is not Kingdom of Saudi Arabia. Therefore, in that circumstances, the goods are required to be provisionally released under Section 110 (A) of the Customs Act, 1962 by putting reasonable condition for release of the goods in terms of precedent decision. Therefore, the matter is remanded back to the adjudicating authority to re-consider the request of provisional release of impugned goods in judicious manner as the goods are in perishable nature within seven days from the date of receipt of this order. Appeal allowed by way of remand.

Issues Involved:
1. Provisional release of imported goods under Section 110(A) of the Customs Act, 1962.
2. Jurisdiction of the Tribunal.
3. Compliance with Phytosanitary Certificate requirements.
4. Classification and rate of duty.
5. Seizure of goods post-clearance.
6. Application of CBEC Circular No. 35/2017 CUS.
7. Consistency with previous provisional release orders.

Detailed Analysis:

1. Provisional Release of Imported Goods under Section 110(A) of the Customs Act, 1962:
The appellants sought provisional release of imported dry dates which were seized. The Tribunal allowed the applications for early hearing due to the perishable nature of the goods. The Tribunal remanded the matter back to the adjudicating authority to reconsider the request for provisional release in a judicious manner within seven days, emphasizing the perishable nature of the goods.

2. Jurisdiction of the Tribunal:
The Tribunal addressed the objection raised by the Authorized Representative (AR) that it lacked jurisdiction to hear the appeals as they pertained to classification and rate of duty. The Tribunal clarified that the appeals did not involve issues of classification, rate of duty, exemption notification, or valuation, and thus, it had the jurisdiction to hear the appeals.

3. Compliance with Phytosanitary Certificate Requirements:
The appellants had submitted Phytosanitary Certificates from the country of re-export (Dubai) but not from the country of origin (Saudi Arabia). The Tribunal noted that the certificates from Dubai incorporated details from the original certificates from Saudi Arabia, meeting substantial compliance. The AR argued that the lack of attested copies from the country of origin made the goods "prohibited" under Section 2(33) read with Section 11 of the Customs Act, 1962. The Tribunal, however, found that the substantial compliance was sufficient for provisional release.

4. Classification and Rate of Duty:
The Tribunal confirmed that the appeals did not involve any issues related to classification or rate of duty. The focus was solely on the provisional release of the seized goods.

5. Seizure of Goods Post-Clearance:
For Appeal No. C/60425/2020, the Tribunal noted that the goods had been cleared for home consumption after SIIB's investigation confirmed the country of origin as Saudi Arabia. The Tribunal emphasized that once goods are cleared for home consumption, they no longer remain "imported goods" under Section 2(25) of the Customs Act, 1962. Therefore, the seizure was not justified on mere presumption or third-party evidence.

For Appeal No. C/60424/2020, the goods were seized at the port due to the lack of an attested Phytosanitary Certificate from the country of origin. The Tribunal found that the provided certificates met substantial compliance and remanded the matter for reconsideration.

6. Application of CBEC Circular No. 35/2017 CUS:
The AR emphasized that the provisional release was rejected because the appellants did not comply with the conditions specified in CBEC Circular No. 35/2017 CUS. The Tribunal noted that the conditions for provisional release should be reasonable and in line with the precedent decisions. The Tribunal directed the adjudicating authority to reconsider the request for provisional release in light of the circular and the perishable nature of the goods.

7. Consistency with Previous Provisional Release Orders:
The Tribunal highlighted that in a similar case involving M/s TRB International, provisional release was allowed by the Commissioner (Appeals) under stringent conditions. The Tribunal directed the adjudicating authority to consider the provisional release of the impugned goods in a similar manner, ensuring consistency and fairness.

Conclusion:
The Tribunal allowed both appeals by way of remand, directing the adjudicating authority to reconsider the requests for provisional release of the seized goods within seven days, considering the perishable nature of the goods and ensuring compliance with the relevant legal provisions and circulars. The Tribunal emphasized the need for a judicious and consistent approach in handling such cases.

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