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TMI Blog2023 (11) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... o 5566 of 2022. Incidentally, the vires of Notification No.5/2023 dated 08.05.2023 has been questioned before the Kerala High Court and interim stay has been granted by the Kerala High Court in WP(C)No.22281 of 2023(I). A similar order has also been passed by this court in the petitioner's own case in WP.No.22392 of 2023 vide order dated 31.07.2023. 3. Consequently, there shall be an interim direction, directing the Office of the respondent to assess and release the goods covered by Bill of Entry No. 6592170 dated 26.06.2023 as the imported good in question namely, "fresh apples" are prone to deterioration." 2. The respondent herein had imported "fresh apples" originating from New Zealand via Bill of Entry No. 6592170, dated 26.06.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, quash the same and to further direct the appellant to release the imported goods and to issue detention certificate for waiver of demurrage and container detention charges in terms of Regulation 6(1)(l) of the Handling of Cargo in Customs Areas Regulations, 2009. 4. When the writ petition came up for hearing on 17.08.2023, following the earlier order of this Court and in view of the stay order against the notification no.5/2023 dated 08.05.2023 passed by the Kerala High Court as well by this Court, the learned Judge has granted an order of interim direction to the appellant to assess and release of the goods covered under the bill of entry No.6592170 dated 26.06.2023, as the imported goods are prone to deterioration. Challenging the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant, appeal remedy is available under Section 128 of the Customs Act, and without exhausting the same, the respondent has preferred the writ petition, in which, the learned Judge erred in passing the impugned order of release of the subject goods and therefore, the same needs to be interfered with by this court. 6. On the other hand, the learned counsel for the respondent would submit that as of now, the notification prohibiting the import of fresh apples on the ground that the CIF value is less than Rs. 50/- per kg, is stayed by two High Courts and it is trite law that when the notification is stayed by one High Court, the operation of the stay order is not confined to the territorial limit of that High Court alone, but has pan India e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in nature and are meant for human consumption, the respondent, without prejudice to his contention, is ready and willing to execute bank guarantee for the differential duty determined by the appellant, apart from the payment of duty component, for release of the subject goods. 7. Heard both sides and perused the documents enclosed in the typed set of papers. 8. The challenge made in the writ petition was to the order-in-original dated 14.07.2023 passed by the appellant, as far as confiscating the imported goods declared as fresh apples, on the ground of minimum import price, vide Bill of Entry No.6592170 dated 26.06.2023 at item nos.1,2,4 and 5, with assessable value of Rs. 18,61,610.02 under section 111(d) of the Customs Act, 1962. The s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods imported by the respondent, when the order of stay granted by the Kerala High Court has been in force [WP(C) No.22281 of 2023 (I) dated 11.07.2023]. Subsequently, in an identical case in WP.No.22392 of 2023, by order dated 31.07.2023, this court has also granted an order of interim stay, in respect of the notification no.5/2023 dated 08.05.2023 dealing with minimum pricing for import of apple. Further, in similar circumstances in M/s.Delhi Photocopiers v. Commissioner of Customs, Chennai and others in SLP.(C) No.7565 of 2021 by order dated 11.08.2021, the Hon'ble Supreme Court has ordered for provisional release of the goods, on terms, and complete the process of adjudication within a fixed time frame. For better appreciation, the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In view of above, the Special Leave Petitions are disposed of. Pending interlocutory application(s), if any, is/are disposed of." 12. Therefore, having considered the fact that the stay of operation of the notification is in force till date and the same is yet to attain finality and also taking note of the nature of the subject goods viz., fresh apples, which are perishable in nature and are meant for human consumption and also in the light of the order of the supreme court as referred to above, this court finds it appropriate to order release of the goods to the respondent, however, subject to the condition that the respondent shall furnish bank guarantee to the value of differential duty to be determined by the authority, in order to s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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