2023 (9) TMI 585 - HC - Customs

Maintainability of petition - availability of alternative remedy - imported goods (black pepper) are prohibited goods or not - seeking provisional release of goods - HELD THAT - The petitioner has an alternate remedy by way of an Appeal before the Appellate Commissioner. However, the Appellate Commissioner as a Statutory Authority, will be guided by Board in Circular No.35/2017-Cus., dated 16.08.2017 bearing reference F.No.394/13/2016-Cus(AS) which leaves no discretion with the Appellate Commissioner. The said circular prima facie is contrary to proviso to Section 151A of the Customs Act, 1962. Therefore, no useful purpose will be served by relegting the petitioner to work out the remedy before the Appellate Commissioner, unless, the Circular is itself put to testing before this Court. Circulars of the Board are not binding on the Courts as held by the Hon'ble Supreme Court in the case of COMMISSIONER OF CENTRAL EXCISE, BOLPUR VERSUS M/S RATAN MELTING WIRE INDUSTRIES 2008 (10) TMI 5 - SUPREME COURT . There is no mandate that the goods shall be absolutely confiscated and vested with the Government. They can be released provisionally under Section 110-A of the Act pending adjudication - the Court is inclined to order a provisional release of the imported consignment of black pepper subject to petitioner furnishing suitable securities in the form of guarantee and subject to the meeting standards prescribed by the Food Safety Authority under the provisions of the Food Safety and Standards Act, 2006. The petitioner shall also pay Customs duty provisionally at Rs. 500/- per kg. The value of Rs. 500/- per kg shall be provisional. The value may be enhanced if the imported consignment of black pepper is actually of higher value. Petition disposed off.

Summary

Issues Involved:
The issues involved in this judgment include the challenge to a notification under the Foreign Trade (Development and Regulation) Act, 1992, the import of black pepper below a specified value, the discretion of the proper officer under the Customs Act, 1962, the validity of an impugned order, the appealability of the order under the Customs Act, and the interpretation of relevant legal provisions by the courts.

Challenge to Notification Under Foreign Trade Act:
The petitioner filed writ petitions challenging a notification issued by the Directorate General of Foreign Trade under the Foreign Trade (Development and Regulation) Act, 1992. The petitioner imported black pepper from Srilanka below the specified import value, which was prohibited as per the notification. The petitioner sought provisional clearance of the imported goods by invoking the discretion vested in the proper officer under the Customs Act, 1962.

Discretion of Proper Officer Under Customs Act:
The petitioner argued that despite the prohibition under the notification, the proper officer has the discretion to allow provisional clearance of goods by imposing a redemption fine after adjudication. The petitioner emphasized the need for testing the imported goods to determine their quality and potential re-export or destruction. The petitioner contended that the impugned order limiting the discretion to impose redemption fine was not sustainable.

Validity of Impugned Order and Appellate Remedy:
The respondent, represented by the Standing Counsel, defended the impugned order as well-reasoned and appealable under the Customs Act, 1962. It was argued that the petitioner should seek an alternate remedy before the Appellate Commissioner. Reference was made to a decision of the Hon'ble Supreme Court regarding the interpretation of Section 111(d) of the Customs Act, 1962, in relation to import prohibitions and restrictions.

Interpretation of Legal Provisions by Courts:
The judgment referred to past decisions of the Hon'ble Supreme Court and the Hon'ble Division Bench of the Madras High Court to analyze the provisions of the Customs Act, 1962, in the context of import prohibitions and restrictions. The courts emphasized the need for compliance with statutory provisions and notifications governing imports and the liability for confiscation in case of non-compliance.

Disposition and Provisional Release of Goods:
The Court disposed of the writ petitions by ordering the provisional release of the imported black pepper consignment subject to certain conditions. The petitioner was directed to furnish suitable securities, pay customs duty provisionally, and comply with standards set by the Food Safety Authority. The respondent was instructed to conduct testing, and if the goods met safety requirements, they could be cleared provisionally with necessary security for any redemption fine. The Court set a timeline for these actions to be completed.