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TMI Blog2022 (1) TMI 817X X X X Extracts X X X X X X X X Extracts X X X X ..... VERSUS THE COMMISSIONER OF CUSTOMS, THE DEPUTY DIRECTOR, DIRECTORATE OF REVENUE INTELLIGENCE, TUTICORIN [ 2021 (12) TMI 1160 - MADRAS HIGH COURT] order modified the conditions imposed by learned Single Judge with regard to bank guarantee alone and said bond will suffice. The second respondent i.e., the Joint Commissioner of Customs is directed to quantify the duty, bond amounts etc., communicate the same to the petitioner forthwith and release the said consignment within one week of said remittance i.e., quantified duty/bond amounts/execution of bonds by the petitioner - It is made clear that nothing contained in this order will stand in the way of an independent inquiry by the authorities in the ongoing investigation. Petition disposed off. - W.P.(MD)No.22788 of 2021 And W.M.P(MD).No.19248 of 2021 - - - Dated:- 12-1-2022 - Honourable Mr.Justice M.Sundar For the Petitioner : Mr.Isaac Mohanlal, Senior Advocate Assisted by Mr.K.Ragatheesh Kumar, for M/s.Isaac Chambers (Law Firm) For the Respondents : Mr.B.Vijay Karthikeyan, Senior Standing Counsel for Customs for R1 to R4 ORDER The writ petitioner has imported '30120.00 kilograms of Black Pepper Sri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stings are read as follows: Proceedings dated 04.01.2022 : ' Read this in conjunction with and in continuation of earlier proceedings made in previous listing on 23.12.2021. Today, this Court is informed that there is a change in learned Revenue counsel and in place of Mr.R.Aravindan, learned Senior Standing Counsel, Mr.B.Vijay Karthikeyan, learned Senior Standing Counsel for Central Excise and Customs would now be representing the respondents. Registry to show the name of Mr.B.Vijay Karthikeyan, learned Senior Standing Counsel for Central Excise and Customs from the next listing. 2. Learned Revenue counsel submits that a counteraffidavit has been email filed but the same has not been placed before me. Let the Registry do the needful before the next listing. 3. List on 06.01.2022. ' Proceedings dated 06.01.2022 : ' At request of Revenue Counsel, list under the Admission Board on Monday (10.01.2022) .' Proceedings dated 10.01.2022 : 'Read this in conjunction with and in continuation of earlier proceedings made in previous listing on 04.01.2022. 2. Today the counter-affidavit filed by the respondents forming part of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Court to Board Circular No.1/2011 dated 04.01.2011 and Board Circular No.35/2017 dated 16.08.2017. To be noted, 'Board' refers to 'Central Board to Excise Customs, New Delhi' in the case on hand. Former circular pertains to 'Export' and the latter pertains to 'Import'. Learned Revenue counsel drew the attention of this Court to paragraphs 2.1 and 2.2 of latter circular and argued that there should be sufficient security. Learned Revenue counsel also drew the attention of this Court to two Division Bench orders one dated 07.09.2017 made in W.A.Nos.1019 1020 of 2017 ( The Commissioner of Customs (Exports) v. M/s.Sri G.P.R.Leathers ) and another dated 20.02.2019 made in W.A.Nos.236 of 2019 and batch cases, ( Unik Traders v. Directorate of Revenue Intelligence, Chennai ) reported in 2019 (367) E.L.T.353 (Mad.) . 5. By way of reply, learned Senior Counsel pointed out that in the aforementioned three orders, pressed into service by him the facts are identical, the consignment is same i.e., Black Pepper and one of the three orders, namely, order dated 23.08.2021 made in W.P(MD) No.13790 of 2021 has been carried in appeal by way of W.A( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cooperate without taking any unnecessary adjournments and after completing the adjudication process at the earliest, within a reasonable time, ultimately if the Customs Department comes to a conclusion that the goods in question are prohibited goods, within the meaning of notification dated 25.07.2018, the needful as per law shall be undertaken by the Customs Department. That apart, the Customs Department shall also make a recommendatory report to the DGFT to initiate action against the petitioner within the meaning of Section 8 of the Foreign Trade (Development and Regulation) Act, 1992. The needful as indicated above to pass orders of making provisional release of the goods concerned shall be undertaken within a period of one week from the date of receipt of a copy of this order. (iii) It is further made clear that, insofar as the claim to be made with regard to the waiver charges, it can be considered separately in accordance with law. ' Paragraphs 12 to 14 of order of Division Bench: ' 12. To make it clear, we modify the condition imposed by the Writ Court to furnish bank guarantee to furnish a bond to the same value. So far as the adjudication is concerne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces are made in the setting of the facts of a particular case, said Lord Morris in Herrington v. British Railways Board [(1972) 2 WLR 537 : 1972 AC 877 (HL) [Sub nom British Railways Board v. Herrington, (1972) 1 All ER 749 (HL)]]. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases.' 9. That leaves us with Al Qahir International case. Al Qahir International case is virtually identical, only the names of the importers, quantity of the consignment, dates of import, dates of bills of entry are different. To be noted, there is no disputation or disagreement the factual matrix is identical as between Al Qahir case and the matter on hand now before this Court. More importantly, Al Qahir International case has been accepted by the Department and learned Revenue counsel has placed before me the electronic mail instructions received by him and a scanned reproduction of the trail mail is as follows: 10. Besides the above, this Court is also informed that the other two orders of two other Single Judges dated 14.07.2021 in M/s.Global Metro v. The Commissioner of Customs and others and 03.12. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsignments in question, as Notification No.21/2015-20 dated 25.07.2018 (Notification in question) permits entry of black pepper falling under Entry No.0904 11 30 only if the CIF value of the import was ₹ 500/- per kg or above. Imports of value less than ₹ 500/- per kg is prohibited. It was the apprehension of the DRI that the goods have been over valued by the petitioner in order to render them freely importable, the word 'free' being used in the context of 'permitted to be imported', as the commodities are otherwise subject to duty at the rate of 8%. 5. Being of the view that the value of the consignments was in excess of what was the true value, investigation was undertaken by the DRI. The ongoing investigation takes note of various documents that appear to indicate that the pricing of the commodity was less than that revealed by the petitioner and also that full consideration had not been remitted to the supplier overseas. Moreover, the DRI states that it is in possession of information to the effect that sales of the consignments importer earlier had been undertaken by the petitioner in the open market at a sum less than the import value. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n has revealed the following: The imports of Black Pepper from Sri Lanka by M/s Global Metro in controlled by Shri Arshad Shajahan. M/s Global Metro has imported black pepper by declaring the unit price in the range of ₹ 501 to ₹ 512/kg. The terms of payment as per the Invoice in most cases is around 50% on DP/DAP terms i.e. Documents against Payment and balance on DA terms L.e. Documents against Acceptance. The time limit for making DA payment is 90 days to 120 days as per commercial Invoice. The said importer has made payments to the overseas muppliers only to an extent of payment against DP terms as per the Commercial Invoice. However, he has not paid the balance amount to the overseas supplier even after the expiry of time period of 90-120 days. He has accepted all the imported Black Pepper without raising any objection with the overseas suppliers on quality issues, in sum, there is no reason recorded by M/s Global Metro to make the lower payments. As per the documents recovered such as Sales Contract, email communication recovered during the search of the premises of M/s Global Metro it is found that the actual unit price of Black Pepper importe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng for the sake of argument that investigation is concluded in favour of the petitioner, if the provisional release is not granted, the entire 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 interests 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. 16. This Writ Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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