9911796707
TMI Blog2024 (3) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... sification of the goods, despite an out of charge being ordered by the proper officer by the Customs. 3. The Petitioner is, inter alia, engaged in the business of import of laboratory chemicals for the last more than three years and has been registered under Import Export Code No. BQQPG0569R. The Petitioner, for the last more than three years, has been importing Ethanol Absolute having purity (Ethyl Alcohol Content) of 99.9% and above, in bottles of 500 ml, from various countries such as Malaysia and China. The said Ethanol Absolute carries markings indicating that the same is meant for use solely as Laboratory Chemicals. The Ethanol Absolute imported by the Petitioner costs approximately Rs. 700- per litre and is of High-Performance Liquid Chromatography (HPLC), which can only be used in laboratories. The Ethanol Absolute is sold by the Petitioner to institutions such as All India Institute of Medical Sciences, Indian Institution of Technology, Defense Research and Development Organization, Bhabha Atomic Research Center, Diagnostic Centers, Research Laboratories, School Laboratories etc. 4. The said Ethanol Absolute has been assessed by the Respondents as "Laboratory Chemical" u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atory chemical. The certificate of analysis also shows that the Ethanol Absolute is of 99.99% purity and is of HPLC Grade. 7. Accordingly, the Petitioner assessed the Ethanol Absolute under CTH 98.02 and paid appropriate duty on the same. After due verification and examination of the Ethanol Absolute, including examination regarding the classification of the goods, the proper officer of Customs passed an Order under Section 47 of the Customs Act, 1962 (the Act) permitting the clearance of the goods for home consumption i.e., granted out of charge to the Ethanol Absolute on 5th September 2023. 8. However, before the Petitioner could take delivery of the Ethanol Absolute, the Petitioner received a letter dated 7th September 2023 from Respondent No. 3, inter alia, informing the Petitioner that the goods were put on hold and the examination of the Ethanol Absolute was scheduled on 8th September 2023 at 10.30 a.m. Further, Respondent No. 3 directed the Petitioner to remain present on the said date at the time of examination along with his Customs House Agent and Chemical Expert. 9. However, since it was not possible for the Chemical Expert to remain present on the same date of the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sonally and requested them to release Ethanol Absolute. The Petitioner was orally informed by Respondent Nos. 3 and 4 that the same would be provisionally released only after a bank guarantee was furnished by the Petitioner. Since, no written communication was received by the Petitioner, by his e-mail dated 18th October 2023, requested Respondent Nos. 2 to 4 to provide the amount for furnishing the Bank Guarantee and permit provisional release of Ethanol Absolute. However, no reply was received from Respondent Nos. 2 to 4. 15. Thereafter, the Petitioner, by his two e-mails dated 19th October 2023 and 23rd October 2023, once again requested Respondent Nos. 2 to 4 to provide the necessary details and permit clearance of Ethanol Absolute. In response to the said e-mails, Respondent Nos. 2 to 4, by their email dated 24th October 2023, informed the Petitioner that the Bank Guarantee and Bond is yet to be decided by the adjudicating authority as per Board Circular No. 35/2017-Cus and the same would be communicated to the Petitioner shortly. 16. Further, by two e-mails dated 30th October 2023 and 1st November 2023, the Petitioner requested Respondent Nos. 2 to 4 to provide a No Objectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are liable to confiscation by invoking Section 110 of the Act. 23. The Petitioner submits, relying upon the Judgement dated 4th November 2023 and Order dated 24th January 2024 passed by this Court in the case of M/s. K Raj and Co., that the Respondents ought to have allowed provisional release of the goods upon execution and submission of a bond by the Petitioner. 24. The Petitioner submits that the Ethanol Absolute has been seized on the purported belief that it is classifiable under CTH 22.07, which is ex-facie erroneous and without any basis. The Petitioner submits that the goods have been imported by the Petitioner and have always been classified and assessed by him under CTH 98.02 as laboratory chemical and 10% basic customs duty has been paid on the same. The said assessments have become final and have not been set aside by any authority. Thus, there was no justification on the part of the Respondents in seizing the Ethanol Absolute on the ground that the same is classifiable under CTH 22.07, when, admittedly, the same had been regularly assessed under CTH 98.02 by the custom authorities themselves. 25. Further, the Petitioner submitted that the imported goods satisfy the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Petitioner has been importing Ethanol Absolute for the last few years and the classification under CTH 98.02 has been accepted by the Respondents, except in respect of Bill of Entry No. 7515045, which is the subject matter of the present Petition. 31. The Petitioner has not been issued any Show Cause Notice till date. According to the Petitioner even the Investigation Report dated 27th October 2023 has not been provided to him. The Petitioner is a regular importer of Ethanol Absolute and not a fly by night operator. The Ethanol Absolute is in bottles of 500 ml and confirms to the marking requirement as per Chapter 98 of the Customs Tariff Act. 32. In our view, the Respondents would not be justified in not permitting provisional release of Ethanol Absolute on the basis that some investigation is being conducted. The classification has to be seen at the time of import by the Petitioner and not the use to which it is put by the buyers of the goods from the Petitioner. There is no condition in the Customs Tariff under chapter 98, it imposes such an obligation on the Petitioner. In our view, in the light of these facts, the Respondents are not justified in refusing to release th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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