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TMI Blog2013 (10) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... a took a policy decision as early as in the year 2009 to promote the import of sand from abroad. It is stated that the petitioner is holding Import and Export Code (IEC) 3210016810. 3. In his maiden attempt, the petitioner imported 'construction sand' ( nearly 31,333.71 MT) extracted from the river Koh Kong in Cambodia, which was brought to the Cochin Port by the vessel Hongxin Blue Sea. According to the petitioner, 'Construction Sand' falls under EXIM Code - 2505 as per the Foreign Trade Policy 2009- 14 and as per the Import Policy, it has been declared as a 'free' item, by virtue of which, no condition is to be satisfied for importing the material to India. The Import General Manifest (IGM) No.205861 dated 11.04.2013 declaring "construction sand in bulk", was delivered from the Vessel to the Cochin Customs prior to entry. The Vessel arrived at the Port on 19.04.2013 and the consignment was unloaded and is lying at 'Q 8 and Q9' open storage space alloted at the Cochin Port Trust. 4. The petitioner submitted two Bills of Entry No. 98863 and No.98864dated 18.04.2013 at the Customs House, Cochin for clearance of 973 MT each of "construction sand in bulk". The draft survey of the to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the District Collector, Ernakulam as well, vide Ext.P6 dated 25.08.2013 addressed to the first respondent. Thereafter, the second respondent issued Ext.P7 letter dated 31.05.2013 to the petitioner annexing a copy of Ext.P8 letter dated 30.05.2013 of the fourth respondent, as to the alleged violation on import of the 'Construction Sand' and the petitioner was required to satisfy 'five times' the inspection/fumigation fees, to have the consignment released, as pointed out by the fourth respondent. 7. The petitioner contends that, inspite of the absence of any objection by the Customs Department as reflected from Ext.P7, but for the satisfaction of the requirements as pointed out by the fourth respondent in Ext.P8 to satisfy 'five times' the inspection/fumigation fees, the petitioner was served with Ext.P9 show-cause notice, proposing confiscation proceedings under Section 111(d) of the Customs Act, read with the relevant provisions of other enactments, including the Plant Quarantine Order and realisation of duty and penalty under Section 112(a) of the Customs Act. This made the petitioner to approach this Court by filing the writ petition for immediate interference, pointing out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... davit has been filed from the part of respondents 1 to 3 seeking to sustain their action and asserting the applicability of 'Plant Quarantine Order' and the alleged illegal import under the Customs Act, with reference to Section 11A necessitating further proceedings under Section 111(d) and the course of action under Section 112 . 11. Heard both the sides in detail. 12. At the very outset, it is to be noted that, the only case of the Customs Department for detaining the consignment is for want of 'Plant Quarantine Certificate'. There is no allegation with regard to any infringement of the Customs Act as to the mis-declaration or otherwise or as to the absence of any valid licence for the import, but for branding the import as illegal under Section 11A of the Customs Act, in view of the alleged violation of the Plant Quarantine Order. 13. The Plant Quarantine ( Regulation of Import into India) Order, 2003 was framed by the Union Government in exercise of the powers conferred by Sub Section 1 of Section 3 of the Destructive Insects and Pests Act, 1914, for prohibiting and regulating the import into India of "agricultural articles mentioned" in the Order . It was issued as per noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in advance, in formPQ 06 along with a registration feeof Rs. 200/- by a bank draft drawn infavourof Accounts Officer,Directorate of Plant Protection,Quarantine & Storage, N.H.IV.,Faridabad- 121001. (iii) The Plant Protection Adviser may,after scrutiny of the application, andif satisfied of the purpose, for whichsuch consignment is being imported,issue special permit in Form PQ 07. (iv) The consignments soil, peat orsphagnummoss etc., shall be inspected, fumigated, disinfected or disinfested by the importer from an agency approved by the Plant Protection Adviser under the supervision of an officer duly authorized by Plant Protection Adviser. 5. Fees for inspection, fumigation, etc. - Theimporter of the consignment or his agent shallpay to the Plant Protection Adviser or any otherofficer duly authorised by him in this behalf, thefees prescribed in Schedule IX towardsinspection, fumigation, disinfestation, disinfectionof consignment." 15. Chapter VI deals with the power of relaxation to be exercised by the Joint Secretary in charge of plant product in the Department of Agriculture & Cooperation, in public interest and the enabling provision to have the consignment released after c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 11 00, it is clearly shown in the Policy as 'restricted'. It is on the basis of the EXIM policy of the Government, that the petitioner chose to import 'Construction Sand', being a 'free import' item and as such, the goods are not any more liable to be detained by the respondents under any circumstances. In the absence of any restriction under any provisions of the Customs Tariff Act or the Foreign Trade Policy, there was no primary requirement for the petitioner to have produced any Plant Quarantine Clearance. 18. There is a specific case for the petitioner that, the 'Construction Sand' imported by the petitioner is not 'soil' as defined under Clause 2 ( xxviii) of Chapter I of Ext.P10 Plant Quarantine Order, in order to attract Clause 3 (14) of the Order. It is also the case of the petitioner that, if the sand is only of such type to be used for the 'purpose', so as to be an organic media that supports plant life or to support growing plants, can it be intercepted for want of Plant Quarantine Certificate. Paragraph 16 of the writ petition reveals the stand and hence it is extracted below : " 16. A plain reading of Chapter II Clause 4 of the Plant Quarantine Order makes it cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thing wrong in making use of the same for construction purpose, more so, when there is scarcity of river sand in the State of Kerala, by virtue of the restrictive/regulatory measures in extracting sand as stipulated under the Kerala Protection of River Bank and Regulation of Removal of Sand Act. It is also to be seen that the construction and development activities in the State involving various projects, such as 'Kochi Metro Rail Project' and such other ventures are not stalled in any manner, for non-availability of raw materials/construction sand, especially when the State is not in a position to meet the growing demand, for 'Construction Sand'. It is with this intent, that the State has also taken a policy decision, as pointed out by the petitioner in paragraph '2' of the writ petition, which has not been controverted from the part of the respondents. This aspect is also evident from Ext.P6 letter written by the District Collector requesting the first respondent to cause the sand to be released at the earliest . 20. Yet another important aspect to be noted is that, various instances (as many as 1800) of imports have been pointed out by the petitioner, as enlisted in Ext.P4, whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e it is admitted that, there is no loss of revenue, further liability of the petitioner, if any, can be finalised in the course of adjudication proceedings. But for that matter, this Court finds that the goods need not be detained any longer. Accordingly, there will be a direction to the respondents to release the goods to the petitioner forthwith, at any rate within 'two weeks' from the date of receipt of a copy of this judgment. Since the quantum payable to have the goods released as mentioned in Ext.P8 issued by the fourth respondent is not brought on record, this Court reckons the same as five times of the amount payable as given in Schedule IX to the Plant Quarantine Order. The goods shall be released to the petitioner as above on payment of the requisite amount and also on executing a 'Bond' for meeting the balance liability, if any, subject to adjudication proceedings. The learned Standing Counsel for the respondents submit that the respondents are ready to finalise the adjudication proceedings within one month. The petitioner is permitted to file a detailed explanation to Ext.P9 show cause notice, if not submitted so far, which shall be done within 'two weeks' hereafter. O ..... 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