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TMI Blog2010 (6) TMI 411X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as per Fertilizer Control Rules and the order of detention was vitiated by total non-application of mind - 2216 of 2009 - - - Dated:- 29-6-2010 - C. Nagappan and P.R. Shivakumar, JJ. REPRESENTED BY : S/Shri Habibulla Badsha, Sr. Counsel, for A. Ganesh, for the Petitioner. S/Shri M. Babu Muthu Meeran, Additional Public Prosecutor and A.P. Peter Gunasekaran, SCGSC, for the Respondent. [Order per : C. Nagappan, J.]. - The father of the detenu has challenged the order of detention in G.O. No. SR.1/641-3/2009 Public (S.C.) Department, dated 13-11-2009, made by the first respondent detaining Thiru. S. Yuvaraj under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. 2.The facts which led to detention, in brief, are as follows : Thiru. S. Yuvaraj, with a view to start Import and Export Business, applied for IEC Number and Import Export Code was allotted to him on 10-7-2009. He found Malaysian buyer interested in Industrial Salt and he procured 75 MTS of Industrial Salt from Thiru. M. Rajesh and he filed the Shipping Bills on 20-7-2009 for three containers and Customs checked, verified the consignment a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for clarification, but they have not done so and this clearly shows non-application of mind on the part of the Detaining Authority, which would vitiate the order of detention. (iii) The detention order was passed against the detenu on the basis of a single, solitary and isolatory act and the grounds of detention do not disclose any past activities of smuggling and there is no material to disclose that the detenu is a habitual smuggler or having bad antecedent and therefore the detention order is bad in law and liable to be set aside." 4. We also heard Mr. M. Babu Muthu Meeran, learned Additional Public Prosecutor for respondents 1 and 3 and Mr. A.P. Peter Gunasekaran, learned Senior Central Government Standing Counsel, for second respondent on the above said submissions. 5. The detenu Thiru. S. Yuvaraj has declared the Consignment of 75 MTS as 'Industrial Salt' in the Shipping Bills and the Customs checked the same and gave 'Let Export' Order also. Thereafter, the samples were taken by the Customs and sent to two Laboratories, namely, M/s. Coromandel Fertilisers Limited and Custom House Laboratory, Chennai. The result of the analysis of M/s. Coromandel Fertil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tassium Chloride. Moreover, that report itself suggests to get expert opinion from Regional Fertilizer Control Laboratory to find out as to whether the sample is classifiable as Muriate of Potash. The reliance placed by the Detaining Authority on the said report to conclude that the sample is Muriate of Potash, is erroneous and reflects non-application of mind. 9.The Detaining Authority has also observed in the grounds of detention that the report, dated 3-8-2009, received from M/s. Coromandel Fertilisers Limited, giving specifications confirms that the samples are of Potassium Chloride (Muriate of Potash). Though the said report mentions the percentage of Water Soluble Potash as K2O in the samples, no opinion is expressed in it stating that the samples are of Potassium Chloride (Muriate of Potash). Further, the authority of M/s. Coromandel Fertilisers Limited to analyse the sample is challenged. Order 29 of Fertiliser (Control) Order, 1985 stipulates that the sample drawn shall be analysed in the Central Fertiliser Quality Control and Training Institute or Regional Fertilisers Control Laboratories or in any other laboratory notified for this purpose by the State Government. 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive satisfaction of the Detaining Authority regarding the valuation of the goods, is not based on relevant material and it vitiates the order of detention. The said contention is well-founded. 14. Customs Valuation (Determination of Value of Export of Goods) Rules, 2007 provides for the methods of determination of valuation of export goods. Three types of valuation are provided under Rules 4 to 6 and they have not been followed in the present case and the Detaining Authority did not seek for clarification from the Sponsoring Authority and has simply relied on the unsigned document. As already seen, there is wide difference between the two valuations reflected in the documents referred to supra and neither the Sponsoring Authority has clarified the same nor the Detaining Authority has called for clarification and this shows the non-application of mind on the part of the Detaining Authority, which vitiates the order of detention. 15.Lastly, the learned Senior Counsel submitted that the detenu had obtained I.E. Code on 10-7-2009 and filed shipping bill on 20-7-2009 and it is his first export and the consignment has been detained and the Detaining Authority has not relied on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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