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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 ..... permit and the fee for Plant Quarantine inspection at 'five times' of normal rates - The fee and such other particulars were given under Schedule IX - Whether this Clause will be applicable itself, was a matter to be looked into and decided in the course of adjudication proceedings and as such, no opinion was being expressed by this Court for the time being. Since it was admitted that, there was no loss of revenue, further liability of the petitioner, if any, can be finalised in the course of adjudication proceedings - But for that matter, the 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 issued by the fourth respondent was not brought on record, the 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raft survey of the total consignment was carried out on 22.04.2013, fixing assessable value for each Bill of Entry at Rs. 12,09,075.40. The consignment covered by Bill of Entry No.98864 was cleared for delivery as per Out of Charge Order dated 26.04.2013 and the petitioner satisfied the entire duty payable, whereas the second Bill of Entry was still to be cleared. 5. While so, the petitioner was served with Ext.P1 restraint order dated 9.5.2013 issued by the third respondent, virtually mentioning no reason at all, and as per Ext.P2 letter dated 13.05.2013, the petitioner was required to produce Plant Quarantine Clearance as per the Plant Quarantine ( Regulation of Import into India) Order, 2003. The petitioner submitted Ext.P3 reply dated 17.05.2013 pointing out that the consignment of 'Construction Sand' was classified under the Customs Tariff Heading ( CTH) 2505 and as per the provisions of the Foreign Trade Policy 2009-14, import of goods which fall under the head 2505 was "free". It was also pointed out that 'Plant Quarantine Clearance' is not attracted, to the case in hand and that the restriction on import of sand, applies only in respect of sand imported for purposes speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erference, pointing out that, the commodity imported is 'Construction Sand' mined from a river in Cambodia, which stands treated and fumigated and has cleared Internationally Accredited Tests by an accredited Construction Material Laboratory (SGS); that it is not an organic medium that supports plant life; that the consignment has also cleared the Radio Activity Test from the Centre for Nuclear Techniques, Vietnam Atomic Energy Commission and that, all these documents were produced along with the Bills of Entry. 8. When the matter came up for consideration on 14.06.2013, the learned Assistant Solicitor General/Standing Counsel for the respondents entered appearance and sought for time to get instructions, particularly as to the scope of the entries under the Customs Tariff Heading 2505, which could be freely imported and as to the application of the Plant Quarantine Order, to the import of 'Construction Sand' and as to the various earlier imports enlisted under Ext.P4, which was cleared without any Plant Quarantine Certificate.The matter was listed on different dates, such as on 19/06/2013, 24/06/2013 and 25/06/2013 and on all these occasions, further adjournments were sought for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der . It was issued as per notification bearing No. S.O. 1322 (E) dated 18-11-2003, published in the Gazette of India, Extra Ordinary, dated the same date. The provisions which are relevant in the context, are extracted herein below : 2 (iii) "consignment"- means a quantity of seeds,plants and plant products or any regulated articleconsigned from one party to other at any one timeshipment and covered by a phytosanitary certificate,bill of entry of customs, shipping/airway bill orinvoice; 2(ix) " Import" means an act of bringing into anypart or place of territory of Republic of India any kindof seed, plant or plant product and other regulatedarticle from a place outside India either by sea, land,air or across any customs frontier; 2(xix) "Plant" means a living plant or a part thereof including seed and germplasm; 2(xx)" Plant Product" means un-manufactured material of plant origin including grain and thosemanufactured products that, by their nature or that of their processing, may create risk for the introduction and spread of a pest; 2(xxv) " regulated article" means any article the import of which is regulated by this order; 2 (xxviii) " soil" means earth, sand, clay, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to have the consignment released after charging the fees for import permit and fee for Plant Quarantine inspection at 'five times' of normal rates, as set forth under Clause 14. Clause 15 deals with Repeals and Savings under Chapter VII. 16. Going by the scheme of the statute, particularly the purpose for which the 'Plant Quarantine Order' was formulated and brought into force, as discernible from the 'preamble' of the Order, it was evidently to prohibit and regulate the import of 'agricultural articles' mentioned therein. The term 'agricultural articles' has not been defined as such and what is contemplated is discernible from the various terms defined under Clause 2 of the General Conditions of import as given in Chapter II, 'Post-entry Quarantine', as dealt with, in Chapter IV etc. 'Construction Sand' prima facie does not come within the purview of the said Order, unless it gets characterised as 'soil' as defined under Clause 2 ( xxviii), which supports plant life or promotes as a medium for growing plants. It is true that the Customs Department is not much concerned with the 'purpose' for which the sand is imported, which however may be the look out of the fourth responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use 4 of the Plant Quarantine Order makes it clear that the order applies to agricultural articles alone.Soil import is prohibited for agricultural purpose but import is permitted for specified purposes mentioned under clause 4 following procedure for clearance as laid down therein. Import of construction sand is free and not covered by the Plant Quarantine Order.Unless the Customs authorities have valid reasons to believe that the sand imported is for agricultural purpose or for the specified purposes under clause 4, they have no jurisdiction to impose any restriction or require for Plant Quarantine Clearance. Ext.P1 restraint order, Ext.P2 demand for Plant Quarantine Clearance and Ext.P8 are therefore clearly illegal. Consequently, Ext.P9 show cause notice is also issued without jurisdiction." 19. The nature of contention raised by the petitioner however suggests that, if the sand attains the colour and characteristic of 'soil' as defined under Clause 2 (xxviii) of the Order, it may require Plant Quarantine Certificate, which in the instant case is not attracted, for the reason that, it is 'Construction Sand', to be subjected to own use in the State. But it has to be noted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out by the petitioner, as enlisted in Ext.P4, whereby 'Construction Sand' has been imported from abroad without any Plant Quarantine Certificate. Of such imports, about 25 imports are of instances pertaining to Cochin Port itself, well within the area and jurisdiction of respondents 1 to 3 herein. Absolutely no explanation is forth coming from any of the respondents as to the above fact and the respondents have not controverted the same. There is no case for the respondents that all such imports have been facilitated/permitted only on the strength of valid Plant Quarantine Certificate issued by the fourth respondent. Further detention of the materials at the Cochin Port is of no help to anybody and the goods have to be cleared at the earliest, to facilitate the construction sector at large and also to avoid the probable loss, by way of demurrage or charges under other heads payable to the Cochin Port. 21. It is relevant to note that, as per the interim order dated 2/07/2013, this Court had directed the respondents to release the goods, subject to appropriate conditions to be imposed to safeguard the Revenue. But in the counter affidavit filed on behalf of respondents 1 to 3, it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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