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TMI Blog2016 (12) TMI 1592X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner of Customs (III) has recommended for provisional release of the said consignments in respect of the above ten shipping bills as above in terms of Board Circular No.01/2011-Cus dated 04.01.2011 (copy enclosed) with the following conditions :- (i) on payment of appropriate export duty ; (ii) on execution of bond for the value of the goods and appropriate security for fine and penalty leviable ; (iii) after adequate numbers of samples as required including for possible prosecution may be taken / collected before such provisional release. 7. In view of the Pr.Commr-III's instructions, it is informed that if the exporters avail the option for Provisional release of the goods, the same may be communicated to SIIB before according 'Let Export Order' to enable the SIIB to draw samples as instructed. 8. The copies of relevant shipping bills and other connected documents are hereby forwarded to you for taking further action. Further, additional bond may also be taken from the exporters that they shall not claim the benefits of Chapter 3 of Foreign Trade Policy (copy enclosed). 3. I may also indicate, at the outset, that the petitioners counsel has argued before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded to and, instead, a second set of samples was drawn by respondent No.3, on 09.11.2016. These samples were also sent by respondent No.3, for testing to CLRI. 6. The petitioners, having become aware of this development, apparently, on 11.11.2016, made a request to the Assistant Commissioner of Customs, SIIB, Customs House, Chennai, that they be supplied the test report generated by CLRI; which, incidentally, would have been the second test report. 6.1. I may only note that each of the petitioners sent an identical, though, separate communication of even date, i.e., 11.11.2016. Furthermore, in this communication, once again, the petitioners, inter alia, sought release of the subject goods goods at the earliest. 6.2. It is the case of the petitioners that on 15.11.2016, a meeting, along with their Advocate, was convened with respondent No.3, to seek a status report, with regard to the matter in issue. 6.3. It appears that two days later, a second meeting, in this behalf, was also convened with respondent No.3, that is, on 17.11.2016. The exercise, I am given to understand, was repeated on 18.11.2016 and 22.11.2016. According to the petitioners, the Customs House Clearing Agent ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... athers Vs. Commissioner of Customs, 2009 (119) E.L.T. 656 (Tribunal); and (ii)judgement dated 10.07.2009, passed in Appeal No.C/267/2009, titled : M/s.Expos Leather Company Vs. Commissioner of Customs, Chennai. 9.3. As would be obvious from the cause title of the instant writ petitions that, Vijayalakshmi Leather case relates to one of the petitioner's before me, i.e., petitioner in W.P.No.43062 of 2016. 9.4. Furthermore, learned counsel points out that the judgement of the tribunal in Expos Leather Company case was challenged before this Court. This Court, vide judgement dated 19.11.2010, passed in C.M.A.No.2937 of 2010 repelled the challenge. A copy of the judgment has been filed to drive home the point. 9.5. In sum, based on the judgements of the tribunal, it was argued by the learned counsel that for the subject goods, to reach the stage of "finished leather", there are several processes involved, and that, merely, because there are minor deficiencies, the subject goods cannot be classified as unfinished leather, as is sought to be done by the respondents. 9.6. It is, thus, the submission of the learned counsel for the petitioners that the entire case set up by the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other report is in the custody of the respondents, the existence of which is not denied. The first favours the petitioners, while the second report, a fact not denied by Mr.Sundar, is not in favour of the petitioners. (ii) The subject goods by themselves are not prohibited goods. (ii)(a) In fact, provisional release is already ordered by respondents, albeit, on conditions which the petitioners claim are rigorous and contrary to the usual conditions imposed in such like matter. (iii) The communication dated 23.11.2016, has, in fact, been adverted to in respondent No.3's letter of even date, i.e., 23.11.2016 addressed to the Advocate acting for the petitioners. The suggestion, therefore, that the petitioners had assessed, unauthorisedly, internal communication, appears to be untenable for the reason that respondent No.3 says that respondent No.1 has recommended provisional release of subject goods in terms of the Board's Circular No.01/2011, dated 04.01.011.. As a matter of fact, conditions for provisional release, are, in fact, provided in the communication, exchanged between respondent No.3 and respondent No.2, which, quite obviously could only have been furnished by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be released in terms of this order immediately on furnishing of the aforesaid bank guarantee and satisfaction of the concerned Commissioner of Customs. We also direct the Commissioner of Customs to hear the adjudication proceeding pending before him as early as possible, preferably within a period of three months, from the date of receipt of a copy of this order. In terms of the aforesaid order, the appeal stands disposed of. We, however, make it clear that while passing the aforesaid order, we have not expressed any opinion or views on the merits of the dispute which shall be independently considered by the competent authority. 14. Similarly, in a Division Bench judgement of the Delhi High Court in Zests Aviation Pvt. Ltd., Vs. Union of India, 2013 (289) E.L.T. 243 (Del.), the same parameter was followed. This yardstick was also adopted by the Delhi High Court in Aban Exim Pvt. Ltd., Vs. Principal Commissioner of Customs, 2015 (319) E.L.T. 430 (Del.). 15. I must note that, as against this, the respondents have relied upon the Division Bench judgement of this Court dated 28.07.2016, passed in W.A.No.377 of 2016, titled : Malabar Diamond Gallery Pvt. Ltd., Vs. The Additional Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;s reliance on the Facility Cricular dated 02.01.2014 to resist the relaxation of conditions is untenable, for the reason that the facility circular does not override the conditions set out in Board's circular dated 04.01.2011. The Facility circular has to be read in the context of the exhortion by the Board, which is, to order provisional release of goods of both importers and exporters, as a matter of rule, to avoid interminable detention, as it otherwise, results in congestion of Ports and accumulation of demmurage charges. 17.1. A perusal of the Facility Circular, on which reliance was placed by Mr.Sundar, would show that it provides for provisional assessment of goods. (i.e. finished leather consignments) pending receipt of test report by the respondent. The Facility Circular does not override the Board's Circular dated 04.01.2011. In fact, the communication dated 23.11.2016 addressed to petitioner's advocate itself orders provisional release of subject goods; a fact, which only supports the argument that there is no contradiction between the facility circular and the Board's circular dated 04.01.2011. 17.2. Therefore, the objection of Mr.Sundar, based on th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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