2015 (5) TMI 732 - HC - Customs

Customs Act: Reduced Cash Deposit Order Upheld

M/s Chalissery Kirana Merchant, M/s. Kay Kay Enterprises, M/s Ali-Shabib Trading Company Versus Union of India And Others

The Court upheld the provisional assessment under Section 18 of the Customs Act, requiring a 20% cash deposit for the release of goods, instead of the ... Country of origin - import of areca nuts - rate of duty @4% if the areca nut is of 'Sri Lankan origin' or leviable at 108% - Provisional assessment - Detention of goods - Demand of differential duty of 35% - Held that:- Particularly with reference to the contention that no incriminating circumstances are there to have doubted the transaction of the petitioners, it is to be noted that the respondents were proceeding with steps, to find out the origin of import with reference to the documents produced by the parties concerned, at different points of time, claiming it to be of Sri Lankan origin, in turn claiming the benefit of notification. It is to be borne in mind that the first petitioner herein was the petitioner in [2015 (4) TMI 686 - KERALA HIGH COURT], in whose case, a condition has already been imposed. The learned Judge of this Court directed to satisfy 35% of the differential duty. Similarly in [2011 (3) TMI 1338 - KERALA HIGH COURT], the case considered by the Division Bench, the second petitioner herein was arrayed as the 4th appellant. The antecedents of the said petitioners, with reference to the above case, show that there was every reason for the respondent Customs Department to have doubted or raised some suspicion as to the place of origin and the transaction concerned. As such, it is not merely with reference to the ongoing enquiry with reference to some other trader, that provisional assessment is ordered imposing condition, but also with reference to the ongoing enquiry, pertaining to the transaction/import done by the petitioners 1 and 2. This being the position, the matter requires to be considered in detail and there is absolutely nothing wrong on the part of the respondents in having pursued the course under Section 18 (1) (c), ordering provisional assessment. - Demand of diiferential duty reduced as per provisional assessment - Decided partly in favour of assessee. Issues Involved:1. Detention of imported goods and provisional assessment under Section 18 of the Customs Act.2. Eligibility for concessional duty under Notification No. 26/2000.3. Doubts about the origin of the imported areca nuts.4. Conditions imposed for the release of goods pending final assessment.Issue-wise Detailed Analysis:1. Detention of Imported Goods and Provisional Assessment under Section 18 of the Customs Act:The petitioners, engaged in importing areca nuts, faced detention of their goods by the Customs Department of Cochin. The authorities proceeded with provisional assessment under Section 18 of the Customs Act, requiring a 35% cash deposit of the differential duty for the release of goods. The petitioners argued that there was no reason to suspect the consignment, and the provisional assessment was unjustified. The Court noted that provisional assessment is warranted under Section 18 (1) (c) when further enquiry is necessary for assessing the duty, and the proper officer can direct provisional assessment if the importer furnishes security for the potential deficiency in duty.2. Eligibility for Concessional Duty under Notification No. 26/2000:Areca nuts are generally subject to a duty of 108%, but a concessional rate of 4% applies if the nuts are of Sri Lankan origin, supported by a certificate of origin under the India-Sri Lanka Free Trade Agreement (ISFTA). The petitioners provided necessary documents, including certificates of origin and phytosanitary certificates, to claim this concessional rate. The Customs authorities, however, sought further verification due to an ongoing investigation involving another trader and past transactions of the petitioners.3. Doubts about the Origin of the Imported Areca Nuts:The Customs Department expressed doubts about the origin of the areca nuts, citing data that Sri Lanka is not a major areca nut-producing country. The Court observed that the data presented by the Customs only reflected major producers and did not conclusively prove that Sri Lanka does not produce areca nuts. The Court emphasized that no material was provided to establish that Sri Lanka is not a place of origin for areca nuts.4. Conditions Imposed for the Release of Goods Pending Final Assessment:The petitioners challenged the condition of satisfying 35% of the differential duty for the release of their goods. The Court referred to previous judgments where similar conditions were imposed due to doubts about the origin of goods. The Court found that the Customs Department had reasons to doubt the petitioners' transactions based on past cases and ongoing inquiries. However, the Court modified the condition, reducing the required deposit to 20% of the differential duty, considering the petitioners' track record and the need to balance interests.Conclusion:The Court upheld the provisional assessment under Section 18 (1) (c) of the Customs Act, acknowledging the Customs Department's need for further enquiry. However, it reduced the condition for the release of goods from 35% to 20% of the differential duty, ensuring a fair balance between the petitioners' interests and the department's concerns. The writ petition was disposed of with these modifications.