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TMI Blog2022 (2) TMI 265X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Customs, Kandla. This would definitely protect the interest of the Revenue to some extent - The respondent No.1 be permitted to re-export the goods by using the nomenclature Naphtha and it is observed that using of the said nomenclature would not bind the Department (DRI) and would not entitle the respondent No.1 to raise a plea of estoppel in the proceeding that may be initiated by the DRI against the respondent No.1. Let Notice be issued to the respondents returnable on 17.02.2022. No notice now be issued to the respondent No.1 as Mr. Modh, the learned counsel already entered his appearance. Notice be issued respondent No.2 shall be served by Email. Direct service is permitted. - R/SPECIAL CIVIL APPLICATION NO. 1715 of 2022 - - - Dated:- 27-1-2022 - HONOURABLE MR. JUSTICE J.B.PARDIWALA AND HONOURABLE MS. JUSTICE NISHA M. THAKORE MR DEVANG VYAS WITH MR DHAVAL D VYAS FOR THE PETITIONER MR VIKRAM NANKANI FOR MR HARDIK P MODH FOR THE RESPONDENT ORDER PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA Draft amendment is allowed. Necessary incorporation shall be carried out at the earliest. As we intend to pass an interim order in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal seizure memo dated 26.2.2021 issued by the Respondent No.2 and declare the seizure of the imported goods as illegal, and unauthorized by law: (B). That direction may be given to the Respondents to release the subject goods without any condition with immediate effect as per the Fresh Test Report analyzed by the Indian Institute Of Petroleum in respect of the sealed Sample No.5 and the Test Report analyzed by the Geo-Chem Laboratories Private Limited in respect of the Sealed Sample No.4 and it may be declared that the Seizure Memo issued by the respondent should be declared as null and void in the interest of justice. (C). That the Test Report submitted by the Geo-Chem Laboratories and Indian Institute Of Petroleum Dehradun in respect of the Sealed Sample No.4 and 5 which confirms that the subject goods are Naptha should be declared as a valid test report in the interest of justice. 5. Thus, the writ applicant prayed for two fold reliefs; first a declaration that the entire seizure was illegal and secondly, the goods be released having regard to the fresh test report of the Indian Institute of Petroleum. 6. The Special Civil Application No.7840 of 2021 came t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ills of entry which is exclusively meant for export can be released provisionally for export or otherwise. Since the proceeding of DRI is continued, no final conclusion can be drawn as regard the allegation of DRI that whether the appellant have correctly classified the goods and/or valued the imported goods therefore, we proceed to decide only the issue of release of the goods. We find that since the goods before import and warehousing was intended to be exported, no prejudice will cause to the revenue with regard to dispute, if any for classification of goods and/or valuation of the goods. There is no dispute on the fact that the appellant had export order in possession, moreover, they had received the part payment against the export order therefore, it is clear that the goods which were warehoused and the goods seized by the DRI was already meant for export. In this position, the mala fide cannot be attributed to the appellant. The appellant have heavily relied upon the provisions of Foreign Trade Policy and Hand Book Procedure, the same is reproduced below: FOREIGN TRADE POLICY 2015-20 1.23 Free passage of Export consignment: Consignments of items meant for exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awl of samples, the seized goods can be allowed to clear for exports pending investigations by accepting undertaking of the exporter. 4.1 The goods other than prohibited goods can be imported, ware housed in public/private bonded warehouse without payment of duty. Authorization for clearance and duty payment is required only for clearance for home consumption which in the present case had not been sought by the appellant as the goods are meant for export only. The warehoused goods can be re exported without payment of customs duty under shipping bills. Therefore, In view of the clear provision under 'Foreign Trade Policy' and 'Hand book Procedure' as reproduced above, the goods which are under seizure is required to be released provisionally for export without payment of duty. We also find that the department could not make a prima facie case even for seizure of the goods in view of the contrary test reports. 4.2 As per our above discussion and findings, we are of the clear view that the warehoused goods which are meant for export only must be released provisionally by accepting only a bond of the total value of the goods, accordingly, we direct the conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Dhaval Vyas, the learned senior standing counsel appearing for the writ applicant, DRI and Mr. Vikram Nankani, the learned senior counsel assisted by Mr. Hardik Modh, the learned counsel appearing for the respondent No.1. 14. At the outset, Mr. Nankani, the learned senior counsel raised a preliminary objection as regards the very maintainability of the present writ application essentially on the ground of propriety. Mr. Nankani would submit that apart from propriety even otherwise the writ application is not maintainable as an appeal would lie before this High Court under Section 130 of the Customs Act. He would submit that such appeal under Section 130 of the Act can be entertained by the High Court only on the substantial questions of law, if involved any. Mr. Nankani pointed out that the writ application has been affirmed by the Assistant Director, DRI, Gandhidham, whereas the writ application has been filed by a higher authority i.e. the Additional Director General. He would submit that if the Assistant Director, DRI, Gandhidham thought fit to affirm the writ application then he is subordinate to the respondent No.2 i.e. the Commissioner of Customs. The entire edifice o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 110A but while passing such order, cannot permit reexport of the goods. He would submit that the goods are liable to confiscation. Ultimately, at end of the adjudication proceedings, if an order of confiscation is passed, redeemption fine would be imposed along with penalty and interest. 19. Manifold other contentions were raised by Mr. Vyas, the learned ASG, while assailing the impugned order passed by the Tribunal. 20. Having heard the learned counsel appearing for the parties and having gone through the materials on record, we are of the view that at this point of time without entering into any other controversy, we must pass an appropriate interim order that may protect the interest of both, the respondent No.1 also and at the same time the writ applicant DRI. It is very clear that even if the respondent No.1 is permitted to re-export the goods as ordered by the Tribunal, it is always open for the Department to initiate appropriate proceedings for the purpose of confiscation of the goods by issue of a show cause notice. All larger issues involved in this litigation shall be looked into and decided. 21. We are of the view that we should permit the respondent N ..... X X X X Extracts X X X X X X X X Extracts X X X X
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