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TMI Blog2024 (9) TMI 948X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner, the impugned order is set aside and the case remitted back to the third respondent to pass fresh order on merits and in accordance with law. Petition disposed off. - Hon'ble Mr. Justice C. Saravanan For the Petitioner : Mr. B. Satish Sundar For the Respondents : Mr. N. Dilip Kumar Senior Standing Counsel ORDER In this Writ Petition, the petitioner has challenged the impugned Order-in-Original No.TUT-CUSTM-PRV-JC-24/2024 dated 27.03.2024 passed by the third respondent Joint Commissioner of Customs. 2. By the impugned order, the third respondent has confirmed the demands proposed in the Show Cause No.226/2022 [C.No.VIII/10/69/2022-ADJN.] dated 24.11.2022. The operative portion of the impugned order reads as under:- ORDER i. I hereby reject the declared description of Betel nut product (known as Supari Unflavoured) filed in the Bill of Entry No.785049 dated 23.03.2022 and hold the description as Areca nut split . ii. I hereby reject the classification of the imported cargo under CTH 21069030 filed in the Bill of Entry no.7985049 dated 23.03.2022 and order reclassification of the impugned imported goods under CTH 08028020. iii. I hereby reject the declared assessa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een emphatically denied by the petitioner. The order does not contain any details about the basis for the conclusion. It is only in the counter that there is an explanation given as to why bank guarantee is sought. 31. In the case of Union of India and others Vs. Raj Grow Impex LLP and others reported in 2021 SCC Online SC 429 , the Hon'ble Supreme Court after discussing the earlier case laws on the exercise of discretion has observed as follows in para 164 and 165 therein:- 164. Thus, when it comes to discretion, the exercise thereof has to be guided by law; has to be according to the rules of reason and justice; and has to be based on the relevant considerations. The exercise of discretion is essentially the discernment of what is right and proper; and such discernment is the critical and cautious judgment of what is correct and proper by differentiating between shadow and substance as also between equity and pretence. A holder of public office, when exercising discretion conferred by the statute, has to ensure that such exercise is in furtherance of accomplishment of the purpose underlying conferment of such power. The requirements of reasonableness, rationality, impartialit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, on 23.03.2022 and had attempted to clear the consignment of 'Arecanut' by classifying the goods under CTH 21069030. This clearance was based on the approval of a similar consignment at Chennai Port under Bill of Entry No.5176713 dated 24.08.2021. 5. The Department has questioned the classification and therefore, the petitioner had earlier approached this Court in W.P.(MD) No.22341 of 2022 for provisional release of the imported consignment covered by the Bill of Entry No.7985049 dated 23.03.2022. The said Writ Petition was disposed of by this Court on 18.11.2022 with the following observations:- 7. Heard the learned counsel for the parties and perused the materials placed before this Court. 8. In the light of consistent view taken by this Court and considering the submissions of the learned counsel on either sides and also taking into consideration the judgments of the Apex Court as well as the earlier judgments of this Court, the Respondents are directed to consider the application of the Petitioner for provisional release under Section 110-A of the Customs Act and the same shall be disposed of by the Adjudicating Authority on merits and in accordance with law, within a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. Vs. Union of India , 2017 (6) G.S.T.L. 15 (Guj.) iii. Imtiyaz Ahmed Vs. Commissioner of Customs, Mangalore , 2014 (308) E.L.T. 625 (Tri. - Bang.) iv. Afloat Textiles (P) Ltd. Vs. Commissioner of Central Excise, Vapi , 2007 (215) E.L.T. 198 (Tri. - Ahmd.) 11. On the other hand, the learned Senior Standing Counsel for the respondents would submit that the petitioner is a regular importer of consignment of 'Arecanut' by classifying goods under CTH 21069030 to evade the tax lability. It is submitted that earlier also, in respect of the consignment covered by the Bill of Entry No.5176713 dated 24.08.2021, the petitioner had mis-declared the classification by violating DGFT's Notification No.20/2015-2020 dated 25.07.2018 and that based on the request of the petitioner, the Show Cause Notice was dispensed with and adjudication order was passed, wherein, the classification adopted by the petitioner and the value declared in the Bill of Entry were rejected and the consignment covered by the aforesaid Bill of Entry was held confiscable under Sections 111(d) and 111(m) of the Customs Act, 1962 by giving option to redeem the goods for re-export on payment of fine of Rs. 15,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the Additional Commissioner, the second respondent herein, pursuant to the directions of this Court dated 18.11.2022 in W.P.(MD) No.22341 of 2022. I have also perused the order of this Court dated 28.06.2023 in W.P. (MD) No.1391 of 2023 disposing of two other Writ Petitions in W.P. (MD) Nos.1250 1252 of 2023 filed by M/s.Genuine Spices and M/s.Sri Shunmuga Traders. 19. The conduct of the petitioner does not inspire confidence as the antecedents of the petitioner in the context of 34 Metric Tons of imported 'Arecanut' vide Bill of Entry No. 5176713 dated 24.08.2021 was diverted after the adjudication order was passed for re-export on payment of fine of Rs. 15,00,000/- by sustaining a penalty of Rs. 20,00,000/- under Sections 125 112(a)(i) of the Customs Act, 1962. This matter has been captured in paragraph 6 of the impugned order. 6. Antecedents of the Importer : The subject case is not the first time for the importer, as the importer had already involved in an offence pertaining to the import of similar goods. The said importer had imported 34 MTs of similar goods i.e. 'Unflavoured Supari (Betel Nut Product)' in two containers vide bill of entry no. 517671 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 128 of the Customs Act, 1962 before the Commissioner (Appeals). If the appeal has to be filed, the petitioner has to deposit 7.5% of the duty demanded or the penalty levied therein and produce the proof of such payment. Therefore, to balance the interest of the Customs Department and the petitioner, I am inclined to set aside the impugned order and remit the case back to the third respondent to pass fresh order on merits and in accordance with law. 21. The impugned order which stands quashed in this order shall be treated as Addendum to the Show Cause Notice No.226/2022 dated 24.11.2022 issued under Section 124 of the Customs Act, 1962. 22. The petitioner shall deposit 7.5% of the disputed tax amount to secure the interest of the Customs Department. The deposit to be made pursuant to this order shall be without prejudice to the rights of the petitioner in W.A.(MD) No.1285 of 2023 pending before the Hon'ble Division Bench of this Court against the order dated 28.06.2023 in W.P. (MD) No.1391 of 2023 and without prejudice to the rights of the petitioner in the remand proceedings. 23. Subject to the petitioner complying with the above requirements, all recovery proceedings shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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