2024 (2) TMI 33 - HC - Customs

Prayer for a Mandamus to release the consignment of Betel nut imported - prohibited goods or not - Section 110A of the Customs Act, 1962 - Regulation 6(1)(l) of the Handling of Cargo in Customs Areas Regulations, 2009 read with Regulation 10(1)(l) of the Sea Cargo Manifest and Transshipment Regulation 2018 - Customs department challenging the order of Customs Authority for Advance Ruling HELD THAT - When Ruling No.AAR/44/Cus/02/2017 dated 31.3.2017 was passed by the AAR, appeal was to be filed under Section 28-KA of the Customs Act, 1962 before the Appellate Authority as defined in Section 28E((ba) of the Customs Act, 1962 namely the Authority for Advance Rulings constituted under Section 245-O of the Income Tax Act, 1961. - Whether indeed the petitioner had resorted to falsehood or obtained Ruling dated 31.03.2022 from AAR by giving incorrect and false particulars or not cannot be decided under the supervisory jurisdiction under Article 226 of the Constitution of India. The jurisdiction of this Court under Article 226 of the Constitution of India cannot be transformed in an appellate jurisdiction especially when the an appellate remedy exist under the Statute under amended Section 28KA of the Customs Act, 1962 - Notification No.20/2015-2020 dated 25.07.2018 issued under the provisions of the Foreign Trade (Development and Regulation) Act, 1992 read with Foreign Trade Policy 2015-2020 was intended only to protect the domestic farmers so that there is parity in price and level playing. As long as custom duty is paid by the importers on the tariff value under Notification No.68/2022-Customs(NT) dated 12.08.2022 based on provisional assessment, there are no impediment in allowing provisional release of the imported consignment of betel nut . Therefore, even if, the imported consignment of betel nut is classified under residuary Chapter Sub Heading 0802 80 90 of the First Schedule to the Customs Tariff Act, 1975, it can be allowed to be cleared provisionally on payment of customs duty on the value in terms of Notification No.68/2022-Customs(NT) dated 12.08.2022 - the rights of the petitioner to clear the import consignments covered by W.P.No.11888 of 2023 provisionally under Section 110 of the Customs Act, 1962 shall be subject to payment of customs duty on the tariff value Notification No.68/2022-Customs(NT) dated 12.08.2022. Since there is a direction to the petitioner to pay customs duty by adopting transaction value in terms of Notification No.68/2022-Customs (NT) dated 12.08.2022, absolute confiscation of the imported consignment need not be ordered. They can be ordered to be released subject to payment of necessary customs duty on the Tariff Value in terms of Notification No.68/2022-Customs(NT) dated 12.08.2022. The Writ Petitions in W.P.Nos.7905, 7907, 7909, 7911, 7915, 7918 of 2023 27828 of 2022 challenging the Show Cause Notices which have been issued to the petitioners are directed to be disposed in accordance with the observations contained herein - petition allowed by remitting the case back to the respondent to re adjudicate Show Cause Notice No.17/2022 dated 28.08.2022 along with the other cases.

Issues Involved:

1. Challenge to Show Cause Notices
2. Challenge to Order in Original
3. Mandamus for Release of Consignment
4. Validity of Advance Rulings
5. Provisional Release Order
6. Classification of Imported Betel Nut

Summary:

1. Challenge to Show Cause Notices:

The petitioners in W.P. Nos. 7905, 7907, 7909, 7911, 7915, 7918, and 27828 of 2022 challenged various Show Cause Notices. The Court directed these petitions to be disposed of in accordance with the observations contained in the judgment.

2. Challenge to Order in Original:

In W.P. No. 7960 of 2023, the petitioner challenged the Order in Original No. 15/2023-Gr.1 dated 06.02.2023. The Court allowed this petition, remitting the case back to the respondent for re-adjudication of Show Cause Notice No. 17/2022 dated 28.08.2022 along with other cases.

3. Mandamus for Release of Consignment:

W.P. No. 26225 of 2022 sought a Mandamus for the release of a consignment of Betel nut. The Court disposed of this petition in view of the orders passed in other writ petitions.

4. Validity of Advance Rulings:

The Customs Department filed W.P. No. 30426 of 2022 against the order dated 31.03.2022 of the Customs Authority for Advance Ruling. The Court noted that the ruling dated 31.03.2017 in AAR/44/Cus/02/2017 was binding unless modified under Section 28K of the Customs Act, 1962. Since no appeal was filed within the stipulated time, the petition was dismissed with liberty to the Customs Department to file an appeal under Section 28KA of the Customs Act, 1962.

5. Provisional Release Order:

W.P. No. 11888 of 2023 challenged the Provisional Release Order No. 33/2023-Gr.1 dated 27.03.2023. The Court quashed the impugned order and remitted the case back to the respondent, directing the provisional release of goods covered by the respective Bill of Entries.

6. Classification of Imported Betel Nut:

The classification of imported Betel nut was a central issue. The Court noted that the classification under Heading 2106 90 30 or residuary Sub Heading 0802 80 90 of the Customs Tariff Act, 1975, was to be determined by physical and chemical examination and the commercial parlance test by the Assessing Officer. The Court emphasized that the ruling dated 31.03.2017 of AAR was binding as long as it remained undisturbed.

Conclusion:

The Court disposed of the writ petitions with specific directions regarding the re-adjudication of Show Cause Notices, provisional release of goods, and the applicability of Advance Rulings. W.P. No. 30426 of 2022 was dismissed, and the Customs Department was given liberty to file an appeal. No costs were awarded, and connected miscellaneous petitions were closed.

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