2023 (12) TMI 1082 - HC - Customs

Seeking provisional release of the consignment of apples imported by the petitioner - Detention on the ground that N/N. 5/2023 has been issued, which caps the minimum price of apples for import at Rs.50/- per kg - HELD THAT - It is seen from the documents as annexed in the petition, which are Bill of Entry and Invoices, that the price at which the petitioner has imported the apples in question is at Rs. 50/- and the embargo to any clearance of such import under Notification No. 5/2023, which would operate if the value is below Rs. 50/- per kg. Thus, it would not be correct on the part of the revenue only on the ground of the notification in regard to fixing of the import price, the present consignment of the apples, as imported by the petitioner should be labelled as prohibited goods. It is also observed that not only this Court in the case of M/S. INDUSINA EXIM L.L.P. VERSUS THE COMMISSIONER OF CUSTOMS (IMPORT) ORS. 2023 (12) TMI 918 - BOMBAY HIGH COURT but also the Kerala High Court as well as the Madras High Court have taken a consistent view in regard to permitting clearance of the apples on the ground that Notification No. 5/2023 has been stayed - there are no contrary judgment which takes a contrary view in regard to the notification in question. It is directed that the imports of the petitioner subject matter of Bill of Entry No. 8854586 dated 20 November, 2023, be released on the petitioner furnishing a bond - An appropriate assessment of the bill of entry be accordingly undertaken in accordance with law within a period of three days from today - petition disposed off.

Summary

Issues involved:
The judgment concerns the import of apples under a specific Bill of Entry, where the consignment has been detained due to a notification capping the minimum price of apples for import at Rs.50/- per kg.

Issue 1: Applicability of Notification No. 5/2023
The petitioner contends that the import value is exactly at Rs. 50/- per kg, making the notification inapplicable. Reference is made to a similar case before the Kerala High Court where a stay was granted on the same notification, allowing provisional release of the imported apples.

Issue 2: Respondent's Opposition and Confiscation
The respondent opposes the petition, claiming the petitioner waived a show cause notice and that the goods have been confiscated through an order dated 18 December, 2023. However, the petitioner has not been served with a copy of this order, and the court deems this not affecting the current proceedings.

Issue 3: Judicial Precedents and Stay of Notification
Both the Bombay High Court and the Kerala High Court have consistently allowed clearance of apples subject to the stayed notification. No contrary judgments have been presented, and the stay on the notification by the Kerala High Court is deemed applicable nationwide based on established legal principles.

Judgment Summary:
The court, after considering the perishable nature of the imports and the legal precedents, allows the petition for provisional release of the consignment of apples subject to Bill of Entry No. 8854586 dated 20 November, 2023, upon the petitioner furnishing a bond. An appropriate assessment of the bill of entry is to be conducted within three days from the date of the judgment. The court observes that no costs are to be imposed, and the matter is disposed of accordingly.