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TMI Blog2024 (2) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... ther indeed the petitioner had resorted to falsehood or obtained Ruling dated 31.03.2022 from AAR by giving incorrect and false particulars or not cannot be decided under the supervisory jurisdiction under Article 226 of the Constitution of India. The jurisdiction of this Court under Article 226 of the Constitution of India cannot be transformed in an appellate jurisdiction especially when the an appellate remedy exist under the Statute under amended Section 28KA of the Customs Act, 1962 - Notification No.20/2015-2020 dated 25.07.2018 issued under the provisions of the Foreign Trade (Development and Regulation) Act, 1992 read with Foreign Trade Policy 2015-2020 was intended only to protect the domestic farmers so that there is parity in price and level playing. As long as custom duty is paid by the importers on the tariff value under Notification No.68/2022-Customs(NT) dated 12.08.2022 based on provisional assessment, there are no impediment in allowing provisional release of the imported consignment of betel nut . Therefore, even if, the imported consignment of betel nut is classified under residuary Chapter Sub Heading 0802 80 90 of the First Schedule to the Customs Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.06/2023 13.09.2022 No.2424168 2. 7907 of 2023 24.01.2023 No.07/2023 24.09.2022 No.2599722 3. 7909 of 2023 24.01.2023 No.08/2023 24.09.2022 No.2599722 4. 7911 of 2023 14.02.2023 No.09/2023 13.09.2022 No.2424171 5. 7915 of 2023 14.02.2023 No.10/2023 13.10.2022 No.2867223 6. 7918 of 2023 14.02.2023 No.11/2023 13.10.2022 No.2867208 7. 27828 of 2022 30.09.2023 No.17/2022 25.08.2022 No.2163427 3. In W.P.No.7960 of 2023 , the petitioner has challenged the Order in Original No.15/2023-Gr.1 dated 06.02.2023 pursuant to the Show Cause Notice No.17/2022 da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paration of 'unflavoured supari as declared by the importer before the Advance Ruling Authority was not carried out on the imported goods , It is, therefore, alleged that the importer has misrepresented facts before the Authority Authority. The representation goes on to in proposing to classify argue that the Authority has erred the subject goods under CTH 21069030 by not emphasizing on the word preparation mentioned in Explanatory Note 2 to Chapter 21 of the IISN. 9. I must at the outset clarify that correction of error, as contended by the concerned Commissioner of Customs, Chennai -11 is not an objective covered by the scope of section 28K of the Customs Act read with regulation 26 of CAAR Regulations, 2021. 10. Further, on careful consideration of the documents submitted by the concerned Commissioner of Customs and having pronounced advance rulings on the same question of classification of betel nut items, albeit disagreeing with the rulings of the erstwhile AAR, I am not able to accord the crucial role ascribed to the process of roasting as has been claimed by the concerned Commissioner. The process of manufacture of four varieties of supar?, involved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,71,592 2. 2599722 24.09.2022 07/2023 24.01.2023 CUS/APR/INV/05/2023-GR 1 7,43,82,462 8,18,20.708 3. 2867225 13.10.2022 08/2023 24.01.2023 CUS/APR/INV/06/2023-GR 1 7.62,79,030 83,906,933 4. 2424171 13.09.2022 09/2023 14.02.2023 CUS/APR/INV/33/2023-GR 1 10.42.00.208 11,46,20,228 5. 2867223 13.10.2022 10/2023 14.02.2023 CUS/APR/INV/34/2023-GR 1 8,16,21,790 8,97,83,969 6. 2867208 13.10.2022 11/2023 14.02.2023 CUS/APR/INV/35/2023-GR 1 7,62,79,030 8,39,06,933 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) (4) (5) 0802 Other nuts, fresh or dried, whether or not shelled or peeled 0802 80 - Areca nuts: 0802 80 90 --- Other Kg. 100% 90% 16. Tariff Sub Heading 0802 80 90 is the residuary Tariff Entry under the 1st Schedule to Customs Tariff Act, 1975. As mentioned above, the petitioner had earlier obtained a clarification from the Authority for Advance Rulings (Central Excise, Customs and Service Tax), (hereinafter referred to as AAR) under Chapter V-B of the Customs Act, 1962 as it stood in 2017 in AAR/44/Cus-1/14/2016 on 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comments in respect of said application were called for from Principal Commissioner of Customs, Chennai-Il and Commissioner of Customs (Nhava Sheva-II). Commissioner of Customs, Chennal-II agreed with the applicant that the subject items are classifiable under Chapter Heading 21069030 as Betelnut Product as Supari . 8. Principal Commissioner of Customs, Nhava Sheva inter-alia submits that pure betelnuts or supari, which have not undergone changes, to merit being called as a product of supari, would remain to be classified under Chapter 8; that there does not appear to be any charge in the nature of the end product undertaken, and therefore, it does not merit classification under CTH 21069020. Purther, reliance is also placed on the judgment of the Hon'ble Supreme Court in case of M/s Crane Betelnut Powder Works reported in 2007 (210) ELT 171(SC). 9. It is noticed that in an identical case, this Authority in Ruling No. AAR/CUS/08/2015 dated 07.08.2015 in case of M/s Excellent Betelnut Products Pvt. Ltd., Nagpur observed that the contention of Revenue that in order to fit in chapter 21, supari, which is also known as Betelnut should undergo diff rent character change ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents, namely, lime, katha and tobacco but containing other flavouring material/ additives are classifiable under Customs Tariff Heading 2106 90 30. 18. As long as the Clarification Ruling of AAR dated 31.03.2017 remains undisturbed, classification of the imports of the petitioner which are covered by the aforesaid Clarification Ruling will be governed by the aforesaid ruling. 19. It will be not only binding on the importer but also on the customs department. This is the mandate of Chapter V-B of the Customs Act, 1962 . This is also made clear in Section 28(J)(1) of the Customs Act, 1962, which reads as under:- Section 28J . Applicability of Advance Ruling - (1) The advance ruling pronounced by the Authority under section 28-I shall be advance ruling binding onlya) on the applicant who had sought it; b) in respect of any matter referred to in sub-section (2) of section 28-H; c) on the [Principal Commissioner of Customs or Commissioner of Customs), and the customs authorities subordinate to him, in respect of the applicant. 20. When AAR had given its ruling on 31.03.2017 in Ruling No.AAR/44/Cus/02/2017, Section 28J(2) of the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elease Order dated 27.03.2023 passed in respect of Bills of Entry in Table-2 and whether the importer is entitled for a Writ of Mandamus in W.P No.26225 of 202 2 and Writ of Certiorarified Mandamus in W.P.No.11888 of 2023 , I propose to first answer the issue in W.P.No.30426 of 2022, as the classification adopted by the importer in the imports is on the strength of the Clarification dated 31.03.2017 the AAR bearing reference Ruling No.AAR/44/Cus/02/2017 . 28. Therefore, I shall now proceed to first answer whether the Customs Department is justified in challenging the order dated 31.03.2022 in Order No.CAAR/Del/Isha Exim/02/2022 passed by the Customs Authority for Advance Ruling (Central Board of Indirect Taxes and Customs) impugned in W.P.No.30426 of 2022. 29. The provisions of the Customs Act, 1962 , indicate that the clarification in Ruling No.AAR/44/Cus/02/2017 dated 31.3.2017 as also the impugned order passed under Section 28-K of the Customs Act, 1962 on 31.03.2022 bearing reference: Order No.CAAR/Del/Isha Exim/02/2022 impugned in W.P.No.30426 of 2022 were/are appealable within sixty days from the date of the communication of such ruling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal Reforms (Rationalization and Conditions of Service) Ordinance, 2021 , appeal was to be filed before the Appellate Authority namely Authority for Advance Rulings constituted under Section 245-O of the Income Tax Act, 1961. 36. Whether indeed the petitioner had resorted to falsehood or obtained Ruling dated 31.03.2022 in Order No.CAAR/Del/Isha Exim/02/2022 from AAR by giving incorrect and false particulars or not cannot be decided under the supervisory jurisdiction under Article 226 of the Constitution of India . 37. Such power of correction is vested with this High Court in its appellate jurisdiction under amened Section 28KA of the Customs Act, 1962. 38. The jurisdiction of this Court under Article 226 of the Constitution of India cannot be transformed in an appellate jurisdiction especially when the an appellate remedy exist under the Statute under amened Section 28KA of the Customs Act, 1962. 39. In Assistant Commissioner (CT), LTU v. Glaxo Smith Kline Consumer Health Care Limited, 2020 (36) G.S.T.L. 305 (S.C.), it was held as under:- 14. A priori, we have no hesitation in taking the view that what this Court cannot do in exercise of its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t would become a case of violation of fundamental right, much less statutory or legal right as such. 40. If W.P.No.30426 of 2022 was filed within sixty days of passing of the impugned Order dated 31.03.2022 in bearing No.CAAR/Del/Isha Exim/02/2022, all these cases could have been referred to the Division of for passing suitable order . 41. However, W .P.No.30426 of 2022 was filed beyond sixty days of passing of the impugned Order dated 31.03.2022 in bearing No.CAAR/Del/Isha Exim/02/2022. W.P.No.30426 of 2022 was filed on 15.11.2022. 42. Therefore, W.P.No.30426 of 2022 challenging the impugned Order dated 31.03.2022 bearing reference No.CAAR/Del/Isha Exim/02/2022 is liable to be dismissed. However, liberty is given to the customs department to file such appeal under Section 28KA of the Customs Act, 1962, if advised. 43. Coming to rest of the writ petitions challenging the Show Cause Notices as tabulated in Table-I and Order-In-Origina l No.15/2023-GR dated 06.02.2023 impugned in W.P No.7690 of 2023 and Provisional Release Order dated 27.03.2023 impugned in W.P.No.11888 of 2023 are concerned, the Court is of the view that the dispute pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a)mixed vegetables of heading 0712; (b) roasted coffee substitutes containing coffee in any proportion (heading 0901); (c) flavoured tea ( heading 0902); (d) spices or other products of headings 0904 to 0910; (e) food preparations, other than the products described in heading 2103 or 2104, containing more than 20% by weight of sausage, meat, meat offal, blood, insect, fig 2103 2104, containingther aquatic invertebrates, or any combination thereof (Chapter 16); (f) *products of heading 2404; (g) yeast put up as a medicament or other products of heading 3003 or 3004; or; (h) prepared enzymes of heading 3507. 48. Supplementary Note 2 to Chapter 21 to the First Schedule to the Customs Tariff Act, 1975 has defined the expression betel nut product known as Supari as follows:- 2. In this Chapter betel nut product known as Supari means any preparation containing betel nuts, but not containing any one or more of the following ingredients, namely: lime, katha (catechu) and tobacco whether or not containing any other ingredients, such as cardamom, copra or menthol. 49. Sub Heading 2106 90 30 under Chapter 21 to the First Sche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1975 and whether it is covered by Ruling dated 31.03.2017 of AAR in AAR/44/Cus/02/2017 is a question of fact. Court cannot determine the same as long as the Clarification/Ruling is in force, imports satisfy the description it should be followed. 56. Therefore, whether the imported consignment is covered by Ruling dated 31.03.2017 of AAR in AAR/44/Cus/02/2017 is to be ascertained only by the Assessing Officer. 57. It is noticed that earlier under Foreign Trade Policy 2015-2020 import of Areca Nut falling under residuary Chapter Sub Heading 0802 80 90 of the First Schedule to the Customs Tariff Act, 1975 was freely importable. The Minimum import price was Rs.162 per Kilogram. 58. By Notification No.35/2015-2020 dated 17.01.2017 the minimum price for import of Areca Nuts was enhanced to Rs.251 per kilogram issued by the Director General of Foreign Trade, New Delhi in the exercise of power conferred under Section 3 of the FT (D R) Act, 1992 , read with Paragraph 1.02 and 2.01 of the Foreign Trade Policy, 2015-2020 , minimum price for import of Areca Nuts was enhanced to Rs.251 per kilogram. 59. Later by Notification No.20/2015-2020 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hibited Provided CIF value is Rs. 251/- and above per Kilogram However, import is free if CIF value is Rs. 251/- and above per Kilogram. 0802 80 90 Other Free Prohibited Provided CIF value is Rs. 251/- and above per Kilogram However, import is free if CIF value is Rs. 251/- and above per Kilogram. 2. Effect of this Notification : Import of arecanut over and above CIF Rs.251/- per kilogram is free and import below CIF Rs.251/- is prohibited. 62. Notification No.20/2015-2020 dated 25.07.2018 issued under the provisions of the Foreign Trade (Development and Regulation) Act, 1992 read with Foreign Trade Policy 2015-2020 was intended only to protect the domestic farmers so that there is parity in price and level playing. 63. The Central Government in the exercise of power conferred under Section 14(2) of the Customs Act,1962 , had fixed the tariff value in respect of the imported goods as described in Table-3 and the corresponding Tariff Heading in Column-II to Notification No.68/2022-Customs(NT) dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 125 of the Customs Act, 1962, as long as Custom Duty is paid in terms of Notification No.68/2022- Customs(NT) dated 12.08.2022 on the tariff value. 69. Therefore, as long as custom duty is paid by the importers on the tariff value under Notification No.68/2022-Customs(NT) dated 12.08.2022 based on provisional assessment, I see no impediment in allowing provisional release of the imported consignment of betel nut . Therefore, even if, the imported consignment of betel nut is classified under residuary Chapter Sub Heading 0802 80 90 of the First Schedule to the Customs Tariff Act, 1975 , it can be allowed to be cleared provisionally on payment of customs duty on the value in terms of Notification No.68/2022-Customs(NT) dated 12.08.2022 . 70. Therefore, the rights of the petitioner to clear the import consignments covered by W.P.No.11888 of 2023 provisionally under Section 110 of the Customs Act, 1962 shall be subject to payment of customs duty on the tariff value Notification No.68/2022-Customs(NT) dated 12.08.2022 . 71. Since there is a direction to the petitioner to pay customs duty by adopting transaction value in terms of Not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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