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TMI Blog2021 (9) TMI 369X X X X Extracts X X X X X X X X Extracts X X X X ..... dent that, even the right of making application to get the provisional release of the goods, if it is a prohibited one, does not arise. If at all the Customs Department finds with documents to substantiate that the goods in question having been imported by the petitioner is prohibited goods within the meaning of 25.07.2018 notification issued by DGFT, apart from taking a decision of declaring the goods as prohibited goods and imposing penalty etc., they can also make a strong recommendation to the DGFT to initiate action against the importer under the provisions of Foreign Trade (Development and Regulation) Act, 1992, especially under Section 8 referred to above and to allow the same to reach its logical conclusion. As it is a drastic decision to be taken by the Foreign Trade Department with the recommendation of Customs Department in any given case, where the documents are rightly available with the customs department, this Court feels that some check and balance measure can be ensured to be placed as against these kind of importers. The respondent is hereby directed to pass orders for releasing the goods in question by way of provisional release ofcourse by imposing the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral of Foreign Trade (DGFT), Department of Commerce, Ministry of Commerce and Industry, these goods in question, which is Black Pepper, according to the respondent, is a prohibited item. Therefore, on that ground, they have not released the goods. 4.Only in that context, the petitioner, in order to release the goods in question, had made an attempt by filing a writ petition before this Court in W.P.(MD)No.9516 of 2021, where, an interim order of direction was also sought for in W.M.P.(MD)No.7249 of 2021. Considering the said plea made in the Miscellaneous Petition, a learned Judge of this Court, by order dated 27.05.2021, has passed the following interim order: 7.In the above circumstances, this Court is inclined to grant an Ad Interim Direction, directing the respondents to provisionally release the goods imported to the petitioner on the following conditions:- ''(i)The petitioner shall deposit a sum of ₹ 50,00,000/- (Rupees Fifty Lakhs only) before the second respondent and he has to execute a bond for a sum of ₹ 6,00,00,000/- (Rupees Six Crores only) before the second respondent. (ii)The petitioner shall not alienate or alter the goods. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per request for provisional release, which the Competent Authority will consider in accordance with law. 13.We make it clear that the direction which we propose to issue in this writ appeal will in no manner have any impact on the investigation done by the DRI. 14.The learned Counsel appearing for the appellant submitted that identical import was effected through the Chennai Port, which was also investigated by the DRI, Bengaluru, who have given No Objection Certificate for clearance of the goods If that is so, it will be well open to the appellant to place copy of such an order for consideration of the Commissioner of Customs, Tuticorin, while filing the application for provisional release. For the above reasons, the Writ Appeal is allowed and the interim direction issued in the Writ petition is set aside. Consequently, the writ petition stands disposed of by directing the appellant to file a proper application for grant of provisional release of the cargo along with their submissions as well as the documents which they propose to rely upon and the Commissioner of Customs, Tuticorin, shall fix the date for personal hearing, preferably, through video conferencing, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in question might have been escalated by the importer and on that basis, if they want to make any adjudication by issuing show cause notice, certainly, it is open for them to do that exercise, however, it would take a reasonable time of a few months or a year or more normally in completing this kind of adjudication. Therefore, till such time, if the goods in question are kept idle, definitely, the goods would get wasted, at the time of completion of the adjudication. Therefore, only in that circumstances, after having considered the nature of the goods in question, which were imported by the petitioner, the Division Bench, while ordering the Writ Appeal filed by the petitioner as referred to above, has permitted the petitioner to make an application to the respondent seeking for provisional release of the goods in question. Accordingly, when such an application was made, the same has been rejected through the impugned order unmindful of the rate having been declared, for which, bill of lading and other relevant documents having been submitted by the petitioner to the respondent Customs Department. Therefore, the impugned order is liable to be interfered with and the provisional rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consignments would have been compromised. The balance of convenience would thus require, in my considered view, that the consignments be released, subject to the petitioner being put to terms. This would also ensure that the interest of the Department are securely protected. The petitioner will remit the entire duty and furnish bond to the satisfaction of the Assessing Authority in regard to interest payable, penalty or charges that may be deemed necessary. 14.The impugned order is set aside. It is made clear that nothing contained in this order will stand in the way of an independent enquiry by the authorities in the on-going investigation. The Deputy Commissioner of Customs/R3 is directed to quantify the duty and bond amounts and communicate the same to the petitioner forthwith and release the goods within a week of such remittance by the petitioner. 15.On the issue of waiver of demurrage charges, the issue is left open to be pursued before the authorities in the light of applicable Rules and Regulations. 12.By relying upon the aforesaid recent judgment of the principal seat of this Court passed in the similar circumstances, the learned Senior Counsel would veh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to redeem the goods concerned, after paying the redemption fine, only if it is not prohibited for import. However, if it is a prohibited item, such kind of option need not be given to the importer, as it is only directory under Section 125(1) of the Act to give such an option to the importer. 16.He would also further enlarge his arguments stating that, in view of the latest judgment of the Hon'ble Supreme Court made in Civil Appeal No(s).2217 - 2218 of 2021 in the matter of Union of India and others vs. M/s.Raj Grow impex LLP and others [2021-TIOL-187-SCCUS- LB], the right of the importer to get release of the prohibited goods either as a final release or provisional release is completely denuded. 17.Further elaborating the said arguments, the learned counsel appearing for the respondents would contend that, in the said case, the Hon'ble Supreme Court confronted the similar situation, where, pulses and spices were imported by various importers at Mumbai, as against which, Customs Department, though after adjudication, by the order in original has directed to release the goods, subsequently, the appellate authority, having reversed the order, has not permitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said rival submissions made by the learned counsel appearing for the parties and have perused the materials placed before this Court. 20.There is no dispute that the petitioner is having licence to import and he has admittedly imported eight consignments of Black Pepper from Sri Lanka, which is the originating country and it had been imported through the Tuticorin port. The same has been intercepted and it has been seized on the ground allegedly that the goods imported is a prohibited goods, in view of the notification dated 25.07.2018 of DGFT. 21.Though an initial attempt was made by the petitioner to release the cargo by seeking for an interim order, though the learned Judge permitted to release the goods by way of interim order, since some stringent conditions were imposed, as against which, the petitioner himself has filed an Intra-Court Appeal as referred to above. In Intra- Court Appeal, in W.A.(MD)No.1156 of 2021, the Division Bench of this Court by order dated 22.06.2021, though set aside the interim order passed by the Writ Court permitting the petitioner to get release of the goods, ofcourse with stringent conditions, however, has given liberty and permission to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the petitioner, it is not a prohibited goods. Because, the rate of consignment per kg is above ₹ 500/-. It is a fact that if it is above ₹ 500/-, certainly, it is not a prohibited goods. Whether it is above ₹ 500/-, or less than ₹ 500/-, is the matter for adjudication, as the same cannot be decided either by customs Department or by this Court at this juncture, without having a full-fledged adjudication, for which necessary procedure is to be adopted and followed. 26.During the course of arguments, when a question was posed to the Customs Department that, whether, within a shortest possible time ie., within few weeks, this kind of adjudication would be possible for the customs Department, the answer was not in the affirmative. That means the Customs Department will certainly take a reasonable time to complete the adjudication. 27.Herein the case in hand if at all the Customs Department feels that it is definitely a prohibited goods, as the rate would have been enhanced or escalated, certainly on these aspects, documents should be collected from the exporter from the originating country and after collecting those documents and related documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reason that, the rate quoted by the petitioner for imported consignment is certainly an escalated figure and it is not a real figure. On that ground, they have rejected. Whether it is an escalated figure or a real figure cannot be finally adjudicated at this juncture, without having completed the adjudication process, which is admittedly yet to be commenced. 31.More over, the learned Senior Counsel appearing for the petitioner has contended that, in respect of Raj Grow Impex Case, dated 17.06.2021, predominantly, it relates to the order passed by the Bombay High Court, where the goods in question having been seized or kept in custody, was adjudicated and after adjudication, though original authority passed an order in favour of the importer, subsequently, the appellate authority has reversed the order that it is a prohibited goods, therefore, it is liable to absolute confiscation. Only in that circumstances, whether the interference made by the Bombay High Court was to be accepted or not was the prime question that triggered the Customs Department to file the SLP before the Hon'ble Supreme Court, where such findings have come. Therefore, in the present case, since adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods, certainly will be a serious issue, and in that case as has been held, it is an issue between the commercial advancement of individual importer vs. National interest at large. 35.The reason being that, the restrictions made through the notification dated 25.07.2018 by the DGFT is only to regulate the local and domestic market, where if large quantity of these kind of goods are kept in the local market, certainly, that will have a negative impact. Thereby, local agricultural producers who produce these kind of goods will get definitely affected. Only in order to protect the local agriculturalists, these kind of restrictions are being made by the Government of India through the DGFT. That is the reason why, these restrictions have come that if you are importing the low priced black pepper, certainly that will have an impact in the market. Therefore, in order to maintain equilibrium and to prohibit these kind of importers who again and again make the mistakes by importing the prohibited goods, certainly some stringent measures can be taken with the aid of the Foreign Trade (Development and Regulation) Act, 1992, under which, the import-export licence is given by the DGFT and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubstantiate that the goods in question having been imported by the petitioner is prohibited goods within the meaning of 25.07.2018 notification issued by DGFT, apart from taking a decision of declaring the goods as prohibited goods and imposing penalty etc., they can also make a strong recommendation to the DGFT to initiate action against the importer under the provisions of Foreign Trade (Development and Regulation) Act, 1992, especially under Section 8 referred to above and to allow the same to reach its logical conclusion. As it is a drastic decision to be taken by the Foreign Trade Department with the recommendation of Customs Department in any given case, where the documents are rightly available with the customs department, this Court feels that some check and balance measure can be ensured to be placed as against these kind of importers. 37.Under these circumstances, this Court feels that, since the right of the petitioner to get provisional release of the goods concerned is not taken away and in fact, this has been reiterated in a similar circumstances by the Hon'ble Supreme Court in an interim order which has been very recently passed on 11.08.2021 in SLP No.7565 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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