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TMI Blog2023 (8) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... ter 30.09.2022 and for importing the same, a valid permit is required to be issued by the competent authority which the petitioner did not have. The provisional release of Watermelon Seeds is rejected vide order dated 23.02.2023 (Annexure P-1) on the ground as prohibited goods . The said observation in itself is not correct as per notifications dated 26.04.2021 and 21.06.2022. Moreover, in the present case, the report of Plant and Quarantine Department has already come in favour of the petitioner and the only ground available with the respondent now is that the Watermelon Seeds are restricted and the petitioner did not have valid permit to import the same. In the present case, the Watermelon seeds are restricted goods but they cannot be treated as prohibited goods and in the absence of any permission/authorization for DGFT, provisional release can be done as per the judgment of Hon'ble Supreme Court passed in Commissioner of Customs's case [ 2019 (1) TMI 1324 - SUPREME COURT ] - Petition allowed. - HON'BLE MS. JUSTICE RITU BAHRI AND HON'BLE MRS. JUSTICE MANISHA BATRA Present: For the Petitioner : Mr. Saurabh Kapoor, Advocate with Mr. Abhishek Chaudhary, Advocate a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Eight Thousand Four Hundred Forty-Four only) to bind himself to pay in case of duty demand, fine, penalty or interest as may be leviable on such goods, subsequently in adjudication in the light of Para 2.1 of Board's circular No. 35/2017-Cus dated 16.08.2017 subject to production of fulfillment of compliance (NOC) of FSSAI and Plant Quarantine Department by the importer. ii. The importer shall furnish a Bank Guarantee/Security (containing clause binding the issuing bank to keep it renewed and valid till final adjudication in of the case, or in the event of non-renewal of bank guarantee, the guaranteed amount be credited to Govt. Account by the bank on its own) for Rs. 1,50,000/- (Rs. One Lakh Fifty Thousand only) as security covering payment of any possible future liabilities of penalties/fines against the goods in the light of Para 2.2 of Board's circular No. 35/2017-Cus dated 16.08.2017. iii. I reject the request of the importer for the provisional release of remaining 550 bags containing Watermelon Seeds mis-declared by them as Roasted Seeds Kernels being prohibited goods as discussed above. 5. The petitioner is now aggrieved of the rejection with respect to 550 bags c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncubator has submitted their report dated 17.03.2023 (Annexure A-5) which shows that the imported seed kernels are unroasted and the report in respect of Red Kidney Beans is still awaited. The report of both Red Kidney Beans and Seed Kernels from the Plant and Quarantine Department, Amritsar is also awaited. 11. On 03.05.2023, learned counsel for the petitioner has handed over copy of report from Plant and Quarantine Department to learned counsel for the respondent to verify the same. 12. Learned counsel for the respondent has filed reply on behalf of the respondent dated 30.05.2023 in Court and same is taken on record. He, while referring to reply dated 30.05.2023, has argued that import of Watermelon Seeds was to be treated free till 30.09.2022 as per notification dated 21.06.2022 (Annexure R-1/1) and Bill of Entry was filed by the petitioner on 24.11.2022. Thereafter, import of unroasted watermelon seeds vide Bill of Entry dated 24.11.2022 is in violation of import policy restrictions w.e.f. 01.10.2022 as notified by DGFT as the same fall under 'restricted category' and the petitioner did not have valid permit to import the same. Hence, the petitioner cannot be given rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 'Restricted' subject to the revised policy condition. 15. Learned counsel for the petitioner contends that as per notification dated 26.04.2021, the Melon Seeds were brought in the category of Restricted , however keeping in view that some of the importers have already filed their Bill of Entries by importing Melon Seeds under the policy being free, a clarificatory notification was issued on 21.06.2022 wherein it has been clarified that shipments of Water Melon Seeds made by 30.09.2022 from the exporting countries may be allowed for clearance at Indian Customs Port, provided that Bill of Entry is filed and such goods are handed over to the Customs Authority for examination by 31.10.2022 and the import policy of Water Melon Seeds was Free till 30.09.2022. 16. Learned counsel for the respondent has argued that in the present case, the Bill of Entry has been filed on 24.11.2022 (Annexure P-4) which is after 31.10.2022, and thus, import of Waterm Melon Seeds are to be treated as restricted and they can be imported after getting valid permit in Form PQ3. He further argued that no consignment can be permitted for import unless acommpanied by a phytosanitary Certificate issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent case, proof of Country of Origin of watermelon seeds has not been submitted. 2. In the case of M/s. Nakshatra Overseas, the Bill of Lading No. MLJEANSA053138 dated 13.06.2022 issued by the shipping line M/s. Aneel Kumar Food Stuff Trading LLC carried the description of goods as HS Code: 200819, whereas in the present case, the Bill of Lading did not carry any entry relating to import of watermelon seeds. 3. In the case of M/s. Nakshatra Overseas, the watermelon seeds were declared before the Dubai Customs but in the present case, the Export Declaration 201-06448944-22 dated 15.10.2022 before the Federal Customs Authority, Dubai, Customs recorded that only 699 bags of Red Kidney Beans were loaded. 4. In the case of M/s. Nakshatra Overseas, Phytosanitary certificates No. DXB-APH-02415-1996587 issued by the Ministry of Climate Change Environment, UAE were available but in the present case, no such phytosanitary certificate for watermelon seeds has been produced. 5. In the case of M/s. Nakshatra Overseas, certificate of fumigation or Disinfestation/or Disinfection treatment dated 31.05.2022 No. DXB-APH-02415-1996587 issued by the Ministry of Climate Change Environment, UAE was su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1962, do not bar redemption of restricted goods imported without authorization. The relevant portion of the judgment is reproduced as under:- 4. In the appeal preferred by the Revenue, the High Court held that the MFD's correctly fell in the category of other wastes under Rule 3(1)(23) of the Waste Management Rules read with Part B and Part D of Schedule III Item B1110 dealing with used Multi-Function Printer and Copying Machines. Adverting to the provisions of the Foreign Trade Act and the Foreign Trade Policy framed thereunder, it was held that the MFDs were not prohibited but restricted items for import. Section 11(8) and (9) of the Foreign Trade Act provided for confiscation and redemption of goods imported without authorization upon payment of market value. The order for release of the goods was upheld subject to execution of a simple bond without sureties for 90% of the enhanced assessed value, with further liberty to the Directorate General of Foreign Trade (hereinafter referred to as the DGFT ) alongwith directions. 9. The MFDs were not prohibited but restricted items for import. A harmonious reading of the statutory provisions of the Foreign Trade Act and Section 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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