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TMI Blog2021 (1) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... n raised by the Ld. AR, the Ld. Counsel submits that the issue before this bench is neither involve any question of classification nor of rate of duty nor of interpretation of any exemption notification and nor of valuation, therefore, the appeals can be heard by this bench and the goods are being perishable nature. 5. As stated by the Ld. Counsel these appeals do not have any issue of rate of duty, valuation, classification or benefit of any exemption notification, the applications of early hearing of the appeals are allowed and as agreed by both sides the appeals are also taken for disposal today itself. 5. The Ld. Advocate for the appellant submits as under:- (ii) Brief Facts In both the appeals, Dry Dates falling under CTSH 08041030 were imported from Dubai having country of origin Saudi Arabia (in short impugned goods). In appeal no. C/60425/2020, bill of entry no. 6596563 dt. 23.01.2020 filed by M/s Findoc Impex - the impugned goods were cleared by Customs after SIIB investigation; subsequent to clearance impugned goods were sold by importer to M/s N.K Impex India and from their godown quantity of 59,650 Kg. of Dry Dates seized b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing provisional release other than those taken in seizure memo. In the operative part of seizure memo, the reason for seizure has been mentioned as : "In view of the above mentioned facts and circumstances, the aforesaid detained goods appears to have been imported by way of misdeclaration of country of origin with an intent to evade payment of appropriate custom duty ", Both in the provisional release order and in order-in-appeal, the impugned goods has been categorized as "prohibited goods" on the ground that appellants had not submitted the attested copy of Phytosanitary Certificate from the country of origin though admittedly Phytosanitary Certificate from the country of re-export had been submitted. It is stated that the Phytosanitary Certificate certifies the fitness of product for human consumption and it has nothing to do with rate of duty, as country of origin is not in dispute vide impugned order. The provisional release order and order-in-appeal passed on entirely different grounds than that in seizure memo. Accordingly, impugned order bad in law and be setaside. (v) Reg. Phytosanitary Certificate of country of origin. The impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5/2017 CUS dt. 16.08.2017 ignoring the fact that goods do not prove the country of origin and condition of Plant Quarantine. It is submitted that Ld. Adjudicating Authority vide letter issued under C.No. VIII-CUS/Ldh/SIIB/NK Impex/36/2020 dt. 07.07.2020 informed to M/s N.K Impex India on their request for provisional release of seized goods as under (copy annexed at page 50 in appeal no. C/60424/2020), copy attached for ready reference : " 3. In this connection, it is intimated the Central Board of Excise & Customs, New Delhi vide Circular No. 35/2017-Cus dated 16.08.20t7 (copy enclosed) has issued guidelines for provisional release of seized imported goods. As per para2.l and2,2 of the circular the Board has specified the conditions for provisional release of seized imported goods. Therefore, the seized imported goods can be released provisionally only on the conditions specified in the Circular as these are binding upon the Competent Authority. " The appellant in appeal no. C/60425/2020, gave representation to Ld. Commissioner for vacation of seizure or alternatively allow provisional release of seized goods vide their letter dt. 08. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Every consignment of plant species herein specified in Schedule-V, VI and VII shall be accompanied by an original Phytosanitary Certificate issued by the authorised officer at country of origin or Phytosanitary Certificate for re-export issued by the country of re-export alongwith attested copy of phytosanitary Certificate from the country of origin as the case may be, with additional declarations being free from pests mentioned under Schedule-V and VI of this order or that the pests as specified do not occur in the country of origin." has not enclosed. The appellants have failed to submit the attested copy of phyto-sanitary certificate from the country of origin as well as clearance from the PQ authorities, non-compliance of this special condition of import has made the goods prohibited in terms of Section 2(33) read-with Section 11 of CA, 1962. It is well settled law that the impugned goods fall in category of prohibited goods. Reliance is made on the following judgments of the Hon'ble Supreme Court:- (a) Sheikh Mohd. Omer vs Collector of Customs, Calcutta and othrs [1983(13)ELT1439(SC)]:- The Hon'ble Supreme Court held that ‗ Any prohibition' in Section 111(d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra and fauna as well as environment in general. (b) The Hon'ble Supreme Court in case of Commissioner of Customs Kochi vs Covai Raja Metals (India) Pvt. Ltd 2016 (335) E.L.T. 583 (S.C.) held that Writ jurisdiction - Exercise thereof against show cause notice - Import of construction sand - Plant quarantine order, applicability of - High Court ought to have avoided invoking writ jurisdiction against show cause notice and should not have gone into applicability of impugned PQ order on import of aforesaid goods - Article 226 of Constitution of India. B. DRI cannot be barred from matter looked into by SIIB:- i) The Bill of Entry of M/s Findoc Impex was marked for first check examination to SIIB, but SIIB had concurred with the importer regarding country of origin and Now DRI cannot challenge this. There is no bar in Customs Act for DRI not to cause investigation after clearance when clearance has been allegedly obtained fraudulently under Section 47(1) of CA, 1962. Moreover SIIB was not investigating violations of Plant Quarantine order,2003 ii). The consignment of M/s N.K.Impex is a live B/E which has been seized by DRI and no involvement of SIIB is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... release orders 5/2020 (N.K.Impex) and 6/2020(Finodoc) both dated 28/08/2020 has dealt specifically with the violation of Para 10(2) of Chapter III of Plant Quarantine (Regulation of Import into India) Order, 2003 and is reproduced as under: "The appellant request for provisional release of seized goods was rejected vide Provisional Release Order Nos. 5& 6/20 passed by the Joint Commissioner by following para 2 of Circular 35/2017- Cus dt. 16.08.2017 on the following grounds:- (a) The importer is adamant for his own set of conditions rather than fulfilling the conditions of Circular 35/2017- Cus dt. 16.08.2017 ignoring the facts that the impugned goods do not prove the country of origin and the conditions of Plant Quarantine. (b) Has not provided Plant Quarantine Certificate issued by Directorate of Plant Protection and Quarantine for clearance. (c) Has not submitted the attested copy of the phytosanitary certificate from the country of origin with additional declaration under schedule V and VI of Plant Quarantine order 2003. (d) Impugned seized goods are prohibited un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder 03/2020.DRI is investigating all such past clearences. E. The fact of evasion of customs duty due to goods of Pakistan origin is prima-facie established by scrutiny of the documents recovered from M/s Today Logistics and M/s Today Global Forwarders (India) which revealed trail of emails exchanged between M/s Today Global Forwarders (India) and M/s Aaamro Freight for bringing consignment of dry dates from Karachi port in Pakistan via Jebel Ali to India. For these very reasons, on specific information, the goods were detained and seized thereupon and investigation is underway by DRI. This fact was revealed upon search of premises of M/s N.K. Impex by DRI. F. Provisional release order is not a mandatory right:- Objective satisfaction at the stage of provisional release casts a duty on the authority to consider whether there are prohibitions/restrictions in the CA, 1962 or any other law for the time being in force and to exercise his discretion satisfying principles of reasonableness which has been done in this case. (a) The issue is no more res integra being decided by the Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial duty and reduced additional BG to 15% from 30% towards penalty. However SC stayed the reduction of BG . Additional case laws and documents enclosed:- (i) Letter dated 22.05.2020 addressed to Deputy Director, DRI by Assistant Director, Plant Quarantine, Amritsar.. (ii) Faridabad CT Scan Centre vs D.G.Health Services 1997(95) ELT 161(SC) (iii) Mala Petrochemicals & Polymers v. A.D.G., DRI 2017 (353) E.L.T. 446 (Del.). (iv) ShivaTex Fabs Ltd. vs UOI 2011(24)STR 525. 7. After hearing both the sides in detail, the short issue involved in the matter is in appeals is that whether the goods can be released provisionally under Section 110 (A) of the Customs Act, 1962 or not? As the facts in both the cases are little difference, therefore, the findings of the each case is give separately. Appeal No. C/60425/2020 It is a case in which the goods have been cleared for home consumption and with a direction to SIIB to investigate the country of origin and it was held by the SIIB that country of origin is Kingdom of Saudi Arabia. The said observation is placed herein as under:- Further, the Ld. Counsel for the appellant during the course ..... X X X X Extracts X X X X X X X X Extracts X X X X
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