9911796707
TMI Blog2023 (8) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... ntry of origin evidencing classification as well as valuation of goods. The petitioner filed Bill of Entry No. 3440622 dated 24.11.2022. On 13.12.2022, the respondent examined the goods at the port of ICD CONCOR, Ludhiana and ordered for detention of goods on the ground that the same are not roasted and fall under CTH 12077090 which classifies seeds used for sowing. 3. Since the goods of the petitioner were not being released, the petitioner filed CWP-1345-2023 challenging the action of the respondent. The respondent made a statement that final decision on the application for release of goods will be taken in due course. 4. On 13.02.2023, personal hearing was granted to the petitioner. The representative of the petitioner requested for drawl of samples by the authorized officer of FSSAI as well as NOC from Plant and Quarantine Department and also requested for provisional release of the goods. The claim of the petitioner was rejected vide order dated 23.02.2023 (Annexure P-1) qua 550 bags containing "Water Melon Seeds" on the ground that they were mis-declared by the petitioner as "Roasted Seeds Kernels" being prohibited goods. The relevant portion of the order dated 23.02.2023 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of roasted seeds to the officials of Food Safety and Standards Authority of India and Plant and Quarantine Department and submit a report to this Court. 8. On 27.03.2023, an affidavit dated 25.03.2023 was filed by the respondent. In this affidavit, the respondent has placed on record notifications dated 10.02.2021 and 09.10.2019 (Annexure A-1) issued by Ministry of Commerce, Directorate General of Foreign Trade, which provide the list of 150 Port of entries (PoEs) as food import entry points and as per Schedule 1 of Import Policy Appendix V read with notifications issued by the FSSAI, a Superintendent/Appraiser/Inspector/Examiner is authorized to take samples at the time of import of food items at ICD Ludhiana. 9. Pursuant to order dated 10.03.2023, samples were drawn on 14.03.2023 from the consignment imported by the petitioner vide Bill of Entry No. 3440622 dated 24.11.2022 in terms of Food Safety and Standards (Import) Regulations, 2017 by the Inspector Customs under panchnama dated 14.03.2023 in the presence of two independent witnesses, DRI (Investigating Agency) and importer's representative i.e. Customs House Agent Sh. Harish Goyal. Copy of the panchnama dated 14.03.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether they are fit for human consumption or not. As regards, Red Kidney Beans, they have already been allowed to be provisionally released vide order dated 23.02.2023 (Annexure P-1) and they have been sent to FSSAI notified laboratory to check whether they are fit for human consumption or not. He further submitted that for provisional release of 149 bags containing "Red Kidney Beans", the importer has to furnish a bond equal to declared value of Red Kidney Beans subject to fulfillment of compliance (NOC) of FSSAI and Plant & Quarantine Department and has to furnish a Bank Guarantee/Security. Finally, he has argued that the order dated 23.02.2023 (Annexure P-1) is an appealable order under Section 128 of the Customs Act, 1962. 14. Learned counsel for the petitioner has referred to a notification dated 26.04.2021 issued by Directorate General of Foreign Trade whereby amendment in import policy of Melon seeds under HS Code 12077090 has been made which is reproduced as under:- "S.O.(E): In exercise of powers conferred by Section 3 read with Section 5 of FT (D&R) Act, 1992, read with paragraph 1.02 and 2.01 of the Foreign Trade Policy, 2015-2020, as amended from time to time, the Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on dated 21.06.2022, the Water Melon Seeds which were imported by 30.09.2022, they were 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 they were to be treated free till 30.09.2022. The intention of the notification dated 21.06.2022 was not to reject the import of Water Melon Seeds which were already before the Customs Authority for examination by 31.10.2022 on the ground that they were restricted. Prior to notification dated 26.04.2021, the import of Water Melon Seeds was free and the importers did not require any permit for importing to India. In this backdrop, the case of the petitioner is to be examined to ascertain as to whether the Water Melon Seeds which were imported by the petitioner vide Bill of Entry dated 24.11.2022 (Annexure P-4) and fall in the category of "restricted" having no valid permit to import, were liable to be seized and confiscated? 18. A perusal of provisional release order dated 23.02.2023 (Annexure P-1) shows that the importer did not possess any license for import of restricted Water Melon Seeds and on this ground they were held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods, provisional release was rejected by observing as under:- "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." In the present case, as per notification dated 26.04.2021 read with notification dated 21.06.2022, Watermelon Seeds fall in the category of "restricted" after 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. 21. In this regard, learned counsel for the petitioner has referred to a judgment passed by H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by High Court of Madras in Malabar Diamond Gallery P. Ltd. vs. Addl. Dir. General, Directorate of Revenue Intelligence, Chennai 2016(341) E.L.T. 65 (Mad.) dealing with smuggling of gold. The High Court of Madras held that the word "Restriction" also means "Prohibition" under the Customs Act, 1962. This judgment is not applicable to the facts of the present case. 23. 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 (supra). Moreover, during the pendency of this writ petition, report from Plant and Quarantine Department has come in favour of the petitioner as regards Watermelon Seeds and in the case of Red Kidney Beans, they have been ordered to be released provisionally subject to conditions as per order dated 23.02.2023 (Annexure P-1). The order with the same conditions can be passed in this case as well as the Watermelon Seeds do not fall under the "prohibited" category and they fall under the "restricted" category as per notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
