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2023 (8) TMI 363 - HC - CustomsProvisional release of the goods - Water Melon Seeds - prohibited goods or restricted goods - notifications dated 26.04.2021 and 21.06.2022 - HELD THAT - The intention of the notification dated 21.06.2022 was not to reject the import of Water Melon Seeds which were already before the Customs Authority for examination by 31.10.2022 on the ground that they were restricted. Prior to notification dated 26.04.2021, the import of Water Melon Seeds was free and the importers did not require any permit for importing to India. A perusal of provisional release order dated 23.02.2023 (Annexure P-1) shows that the importer did not possess any license for import of restricted Water Melon Seeds and on this ground they were held liable to be confiscated under Section 110A of the Customs Act. In the present case, as per notification dated 26.04.2021 read with notification dated 21.06.2022, Watermelon Seeds fall in the category of restricted after 30.09.2022 and for importing the same, a valid permit is required to be issued by the competent authority which the petitioner did not have. The provisional release of Watermelon Seeds is rejected vide order dated 23.02.2023 (Annexure P-1) on the ground as prohibited goods . The said observation in itself is not correct as per notifications dated 26.04.2021 and 21.06.2022. Moreover, in the present case, the report of Plant and Quarantine Department has already come in favour of the petitioner and the only ground available with the respondent now is that the Watermelon Seeds are restricted and the petitioner did not have valid permit to import the same. In the present case, the Watermelon seeds are restricted goods but they cannot be treated as prohibited goods and in the absence of any permission/authorization for DGFT, provisional release can be done as per the judgment of Hon'ble Supreme Court passed in Commissioner of Customs's case 2019 (1) TMI 1324 - SUPREME COURT - Petition allowed.
Issues Involved:
1. Quashing of the order rejecting the request for provisional release of imported goods. 2. Classification and valuation of the imported goods. 3. Compliance with import policy and regulatory requirements. 4. Provisional release of the goods. Summary: Issue 1: Quashing of the Order Rejecting Provisional Release The petitioner sought the quashing of the order dated 23.02.2023, which rejected the request for provisional release of goods imported via Bill of Entry No. 3440622 dated 24.11.2022. The order allowed the provisional release of 149 bags of Red Kidney Beans but rejected the release of 550 bags of Watermelon Seeds, which were mis-declared as "Roasted Seeds Kernels" and classified as prohibited goods. Issue 2: Classification and Valuation of Imported Goods The petitioner imported Roasted Seeds, but the respondent detained the goods, claiming they were unroasted Watermelon Seeds classified under CTH 12077090, used for sowing. The petitioner contested this classification and requested the drawl of samples by FSSAI and NOC from the Plant and Quarantine Department. Issue 3: Compliance with Import Policy and Regulatory Requirements The respondent argued that the import of Watermelon Seeds was restricted post 30.09.2022, and the petitioner did not have a valid permit. The petitioner contended that the goods were imported under the policy that allowed clearance for shipments made by 30.09.2022. The respondent cited the absence of necessary certificates and compliance documents, including the phytosanitary certificate. Issue 4: Provisional Release of the Goods The court examined the notifications and found that the Watermelon Seeds fell under the "restricted" category but were not prohibited. The court referred to the Supreme Court judgment in Commissioner of Customs vs. Atul Automations Pvt. Ltd., which distinguished between restricted and prohibited goods, allowing for the redemption of restricted goods upon payment of market value. The court concluded that the Watermelon Seeds could be provisionally released under similar conditions imposed for the Red Kidney Beans. Conclusion: The writ petition was allowed, and the order dated 23.02.2023 was set aside concerning the Watermelon Seeds. The court directed the respondent to pass a provisional release order for the Watermelon Seeds under the same conditions as the Red Kidney Beans within one week.
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