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TMI Blog2022 (8) TMI 937X X X X Extracts X X X X X X X X Extracts X X X X ..... ccepts notice for R1 and R4 and Mr.V.Sundareswaran, learned Senior Panel Counsel accepts notice for R2 and R3 and both are armed with instructions to proceed with the matter finally even at this juncture. Hence, by consent of all learned counsel, this Writ Petition is disposed finally even at the stage of admission. 2. The prayer of the petitioner, which is an importer of consignment of betel nut, is for a mandamus directing provisional release of the consignments for the purpose of re-export and also to permit re-export without charging any demurrage/detention charges. 3. The goods have been imported against bill of entry No.7666982 dated 27.02.2022. This Court has had an occasion to consider the prayers along with similar lines, though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2, 11260, 11277, 11414, 11662, 13314 of 2022 and WP.No.8604 of 2022, the petitioners have been served with seizure memoranda issued by the 4 th respondent intimating the petitioners that the consignments have been seized. 3. In WP.Nos.12473, 12474 & 12477 of 2022, the petitioners would deny receipt of seizure memoranda, but are before the Court insofar as their consignments have also, admittedly, been seized. 4. Some of the petitioners have filed applications for provisional release of the consignments under Section 110A of the Customs Act, 1962 (in short 'Act') on the following dates: Sl.No. WP.Nos. Company Name Date 1. 11414 of 2022 M/s.Sarveshwari Industries 19.04.2022 2. 11277 of 2022 M/s.Sarveshwari Industries 18.04.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of Foreign Trade has held that all products falling under Chapter-8 are freely importable subject to the condition that the import value is Rs.251/- and above per kilogram CIF. Admittedly, the commodities in all consignments in the present cases, are valued at less than Rs.251/- per kg. Thus, and assuming that the commodities in question were held to fall under the sweep of Chapter 8, they would be categorised as 'prohibited goods' as per Notification No.20/2015-2020. 9. The issue to be decided by the authority is thus one of classification, as to whether the products fall under Chapter 8 satisfying the definition of whole/split/ground/any other form of Areca nut or Chapter 21, being, betal nut product known as supari. 10. Though th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and decide with the assistance of the petitioners. 15. No doubt, the provisions of Section 110A provide for provisional release upon terms to be imposed by the authority. However, the provisions of Section 125, that deals with 'option to pay fine in view of confiscation' provides for two situations. In the case of confiscation of prohibited goods, the option to pay fine in lieu of confiscation is discretionary, such discretion to be exercised by the authority. 16. It is only in the case of other goods, that are not prohibited, that the Officer 'shall' offer to the owner or the person from whose possession the goods were seized, an option to pay a fine, in lieu of confiscation. Thus, in the case of prohibited goods, the discretion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tances where the FSSAI, Mumbai test report is in contradiction to the CRCL Lab and the request made by the appellant in view of grounds of appeal cited above I find it is necessary to re-test the impugned goods in the jurisdictional FSSAI. Therefore, I remand the case to the adjudicating authority for retesting of the impugned goods in the jurisdictional FSSAI lab. Since, the principles of natural justice has not been followed, the adjudicating authority may re-examine the matter afresh and pass appropriate orders as deemed fit. As the cargo is perishable in nature and since the cargo is already provisionally assessed under Sec. 18 of Customs Act, 1962 by the proper officer the cargo may be released immediately subject to the outcome of FSS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Board. It may be mentioned that in case of classification disputes, by & large, option is given for provisional clearance/assessment, if the inquiries are going to take time. However, the Board desires that a disputed or offending consignment should also not be held up unless its import/clearance is totally prohibited or banned under any law for the time being in force [E.g. PFA, CITES, Weight & Measures Act, etc.] or where prosecution is contemplated. At most, samples should be drawn and consignment should be allowed to be cleared on provisional basis as a matter of right. This will prevent congestion at ports and warehouses. Adequate B.G./security may be taken to safeguard revenue (including possible fine and penalty). In case where it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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