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TMI Blog2023 (8) TMI 802X X X X Extracts X X X X X X X X Extracts X X X X ..... g is so fixed in order to protect our farmers. However, it has to be borne in mind that the above referred Notification which forms the basis for the show cause has been stayed by the Karnataka High Court and the same has not been varied or set aside. The issue of confiscation would arise only if the goods are prohibited and the issue of classification is still pending adjudication. Another factor that engages the attention of this Court is the fact that in all the earlier imports the Department had not raised this issue of classification. The records would further show that although in the earlier writ petitions and appeals the petitioners had requested for a provisional release of the goods, after the disposal of the writ appeals the petitioners have requested to re-export the goods. Therefore, the direction to consider the provisional release in terms of Section 110A of the Customs Act now stands converted to the issue as to whether 're-export' can be granted by just receiving a bond. On reading of the impugned order would show that no reason has been given for imposing the condition for furnishing the bank guarantee. The petitioners have set out in detail in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent to issue a 'Detention Certificate' for waiver of demurrage and container detention charges in terms of Regulations 6(1)(l) of the Handling of Cargo in Customs Areas Regulations 2009 read with Regulation 10(1)(l) of the Sea Cargo Manifest Transhipments Regulations 2018. 3.1. W.P.(MD) No.1252 of 2023 is filed by M/s.Sri Shunmuga Traders for the following relief: For the issue of a Writ of Certiorarified Mandamus to call for the records of the order dated 22.12.2022 bearing reference in C.No.VIII/06/114/2022-IA, passed by the respondent and quash the same consequently directing the respondent to permit the petitioner to re-export the goods namely 'Unflavored Supari' (Betelnut Product) classifiable under ITC (HS) code 21069030 covered under Bills of Entry Nos.7200431 dated 23.01.2022 and 7556557 dated 18.02.2022, without insisting on Bank Guarantee in terms of the said order, and direct the respondent to issue a 'Detention Certificate' for waiver of demurrage and container detention charges in terms of Regulations 6(1)(l) of the Handling of Cargo in Customs Areas Regulations 2009 read with Regulation 10(1)(l) of the Sea Cargo Manifest Trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the commodity within two weeks. The goods covered under the respective bill of entry were to be released provisionally subject to the petitioners furnishing personal bond for the full value of the goods and furnishing bank guarantee at 50% of the differential duty considering the Duty Free Tariff Preference Scheme for Least Developed Countries benefit. The adjudication process was directed to be continued and concluded within a period of three weeks. 7. Pursuant to the order of this Court, the impugned orders challenged in all the writ petitions were passed in and by which the respondents had held that the re-export would be granted subject to the petitioners' furnishing the bank guarantee to the tune of the amounts as set out in each of the writ petitions. Therefore, aggrieved by the same, the petitioners have approached this Court. 8. In the grounds of challenge to the impugned order, the petitioners have mainly raised two grounds; a) that the impugned order is against the language of the order in W.A.No.556 of 2022; and b) the notification number 20/2015-20 dated 25.07.2018, which prohibits the import of Areca nuts/Betelnuts falling under Chapter 0802 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. The petitioners, who had been granted two personal hearings, have not attended the same. It is the case of the respondents that the bank guarantee has been demanded only to cover the redemption fine and penalty, which can be imposed at the time of adjudication. It is the fear of the respondents that once the goods are released, the Department would be left without any hold on the petitioners for recovering the redemption fine and penalty. It is their case that though no duty is payable since the goods have been reexported, however the importer has committed an offence under the Custom Laws, which makes them liable to pay redemption fine and penalty and therefore, the respondents would submit that there is no error in the order passed by the respondents for furnishing the bank guarantee. 13. In W.P.(MD) No.1391 of 2023, the respondents would further add that bank guarantee has been sought for in this case, since there are serious allegations against the petitioner, who had clandestinely removed the goods which had been confiscated on an earlier occasion and therefore, the respondents are justified in demanding an additional security in the form of a bank guarantee. SU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisional release of the goods for home consumption/re-export on executing of a simple bond and waiving the requirement of executing a bank guarantee for the same. These arguments have also been more or less adopted by Mr.B.Sathish Sundar, who would add that the removal of goods in the matter of the petitioner in W.P.(MD) No.1391 of 2023 pertains to an earlier period that is still awaiting orders. As regards the 2nd issue, the petitioner would rely on earlier judgments of this Court to justify the request for issuance of detention cum demurrage waiver certificates. 19. Per contra, Mr.Dilip Kumar, learned counsel appearing for the respondents would make the following submissions which he has put in context under distinct headings. With reference to the first issue, it is his primary contention that the power to order a provisional release of the seized goods pending adjudication falls only within the discretionary power vested in the Department. Further, the statute gives the power to the Department to impose conditions it deems fit for ordering the provisional release. He would submit that a mere reading of the provisions of Section 110A of the Customs Act would prove the same. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was leviable in case of re-export by contending that in the cases cited on the side of the petitioners final adjudication had been completed, whereas in the instant case it is still pending adjudication. He would submit that the quantum of redemption fine is fixed at the discretion of the Adjudicating Authority and would rely upon the judgment reported in 2021 SCC Online SC 429 (Union of India and others Vs. Raj Grow Impex LLP and others) and the case reported in (2000) 1 Supreme Court Cases 565 (Weston Components Ltd Vs. Commissioner of Customs, New Delhi). The past conduct of the petitioner in W.P.(MD) No.1391 of 2023 would also justify the levy of bank guarantee. 22. As regards the 2nd issue relating to the detention certificate reliance is placed on the fact that the classification is wrong and as per Notification No.20/2015-2020 dated 25.07.2018 import of Betelnuts/ Areca Nuts with a CIF value of less than Rs.251/- per kg., are prohibited . Since they are prohibited goods, they are liable for confiscation under Section 111(d) of the Act. Therefore, it would not be possible for issuing the detention certificate. To buttress this argument, the learned counsel would rely up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce need to be made to the judgment in W.A.No.556 of 2022, which was an appeal filed by the Department challenging the order in W.P.(MD) No.8916 of 2022. The writ petitioners therein had only sought to re-export the very same product which is the subject matter of these writ petitions. The learned single Judge had permitted the re-export making it very clear that the order was without prejudice to the appellate authorities' right to levy penalty or any other charge that may be imposed depending upon the circumstances. The Division Bench while dismissing the appeal after observing that It will be in the interest of both to permit the respondent to re-export the goods subject to reasonable conditions to protect the Revenue ultimately held as follows:- 15. In view of the above, this Court while dismissing the Writ Appeal, directs appellants to permit the respondent to exercise their option as per the order of learned Single Judge upon the respondent executing a bond to the full value of the goods that is sought to be re- exported and this order or direction is issued without prejudice to the rights or authority of the appellants to proceed further with the investigation and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... low re-export of the imported goods on execution of a bond for an amount of Rs.4,28,83,177/- ( Rupees Four Crores Twenty eigh lakhs eighty three thousand One hundred Seventy Seven only) along with Bank guarantee for and amount of Rs. 1,32,00,000/- ( Rupees One Crore and Thirty Two Lakhs Only). ORDER Hence I allow re-export of imported goods imported vide BE Nos.70101263 dated 16.01.2022 7102157 dated 17.01.2022 on execution of a bond for Rs.4,28,83,177/- ( Rupees Four Crores Twenty eight Lakhs eighty three thousand One hundred Seventy Seven only) and on execution of Bank Guarantee equal to Rs. 1,32,00,000/- ( Rupees One Crore and Thirty Two Lakhs Only). 29.In the case of W.P.(MD) No.1252 of 2023, the respondent has not discussed the contents of the application filed by the petitioner or their arguments but has passed the following order:- 3. The importer submitted again a letter dated 06.12.2022 in which they have acknowledged the receipt of the provisional release order as cited above. Further they have stated that they are not in a position to accept the terms and conditions given in the above order and to release and to release their goods. Further the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.1391 of 2023, who is alleged to be a habitual offender violating the provisions of the Customs Act by removing the confiscated goods on an earlier occasion. The petitioners in the other two writ petitioners have been importing the very same product on earlier occasions and it is also not the case of the Department that they are fly by night operator . ISSUE NO.2:- 34. Since the detention is on the orders of the Department applying the ratio laid in Balaji Dekors Vs. Commissioner of Customs, Commissionerate-III, Chennai reported in 2017 (356) E.L.t. 219 (Mad), detention certificate should be issued to the petitioners in W.P.(MD) Nos. 1250 and 1252 of 2023. The argument of the Department against its issue is the Central Government Notification No.20/2015-2020 dated 25.07.2018. This notification, as already stated, is stayed by the Karnataka High Court. The 2nd issue is therefore to be answered in favour of the above referred petitioners viz; W.P.(MD) Nos.1250 and 1252 of 2023. In fine; i) W.P.(MD) Nos.1250 and 1252 of 2023 are allowed and the petitioners shall be permitted to re-export upon executing a bond to the full value of the goods that are sought to be expor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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