2023 (3) TMI 701 - AT - Customs

Provisional release of the goods for the purpose of re-export only - dyed polyester with modified twill - dyed polyester fabric coated/laminated with Polyurethane - classifiable under CTH 54076190 and 59032090 - dyed Poly vinyl chloride coated polyester fabric - dyed polyester fabric coated / laminated with Polyurethane - classifiable under CTH 59031090 and 59032090 or not - Section 110A of the Customs Act, 1962. HELD THAT - It is clear that samples have been drawn and sent for testing to the Textile Committee. The report has been received on the basis of which the goods have been seized. There is misdeclaration of the goods as to their description, classification and quantity. The Ld. Counsel has submitted that the appellant has undertaken not to contest the classification, identity and quantity of the goods in the proceedings. The Ld. A.R has not been able to put forth any reason as to the necessity to still keep the goods in custody. The request is to provisionally release the goods for re-export only. We also take note that the appellant has paid Rs.50 lakhs. The Hon ble jurisdictional High Court in the case of KAUSALYA IMPEX VERSUS CHIEF COMMISSIONER OF CUSTOMS, CHENNAI 2001 (6) TMI 73 - HIGH COURT OF JUDICATURE AT MADRAS held that when the goods are freely importable, refusing the request to re-export is not legal or proper. The goods in the present case are freely importable and not prohibited goods. The appellant has undertaken not to contest the classification, description or quantity of the goods. The appellant has also made payment of Rs.50 lakhs. After appreciating these facts and following the ratio laid in the above decisions, refusal to provisionally release the goods for the purpose of re-export only is not justified. The impugned order (letter refusing to provisionally release the goods for re-export) is set aside. The adjudicating authority is directed to consider the request of the importer-appellant for provisional release of the goods for re-export only within a period of one month from the date of receipt of this order, subject to reasonable conditions, if necessary, for safeguarding the revenue. Appeal allowed.

Summary

Issues:
The judgment concerns the request for provisional release of goods for re-export only.

Details of the Judgment:

Issue 1: Mis-declaration and classification of imported goods
The appellant imported fabrics with mis-declaration of description and quantity, leading to re-determination of classification and seizure of goods. The appellant sought provisional release for re-export due to the mistake by the overseas supplier. The adjudicating authority rejected the request for re-export, stating it can only be considered after investigation. The appellant argued that the power to allow provisional release for home consumption includes re-export, citing Customs Act, 1962. The Tribunal noted that the goods were not prohibited, and the appellant had filed under FIRST CHECK due to uncertainty in classification. The Tribunal found no reason to further detain the goods, especially as samples had been drawn and tests conducted.

Issue 2: Perishable nature of goods
The appellant highlighted that the coated fabrics were perishable and would lose value if detained for a long period. The appellant referred to CBEC Circular and various legal precedents to support the argument for provisional release pending adjudication. The appellant undertook not to dispute the classification, value, or quantity of the goods, emphasizing that samples had already been tested. The Tribunal considered the arguments and observed that the goods were freely importable, and refusing re-export request was not justified.

Conclusion:
The Tribunal set aside the order refusing provisional release for re-export, directing the adjudicating authority to consider the request within one month, subject to reasonable conditions for safeguarding revenue. The appeal was allowed in favor of the appellant.