TaxTMI 
TaxTMI 
2009 (12) TMI 231
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..... 19/2004-09 stating that it is prospective and cannot be applied to goods shipped prior to 18-2-2005, but the petitioners proceeded on the basis that they have complied with the Ministry of Finance, Department of Revenue, Central Board of Revenue and Customs Circular No. 56/2004-Cus., dated 18-10-2004 with regard to the inspection certificate issued by the National Accreditation body at the country of origin of the imported metal scrap. The writ petitioners have to satisfy that the certificate produced is in terms of the Ministry of Commerce Policy Circular as applicable. The Customs Circular is relatable to inspection of the goods at the time of clearance and it includes verification of the inspection certificate issued by the National Accreditation body specified in Appendix 28 of the Handbook of Procedure in the Foreign Trade Policy as amended. The petitioners have confused the issue by misreading the Commerce Ministry's Circular with the Customs Circular, inasmuch as the writ petition prayer states that they have complied with the requirement of Customs Circular No. 56/2004, dated 18-10-2004 issued by Ministry of Finance, Central Board of Exercise and Customs in File No. 450/1....
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....following ports only: 1. Chennai, 2. Cochin 3. Ennore, 4. JNPT 5. Kandla, 6. Mormugao, 7. Mumbai, 8. New Mangalore, 9. Paradip 10. Tuticorin, 11. Vishakhapatnam, 12. ICD Tughlabad, 13. Pipava 14. Mundra and 15. Kolkatta. Moreover, in case of such Imports that exporter shall furnish that following documents to that customs at the time of clearance of goods: (I) Pre-shipment inspection certificate as per the format in Annexure I to Appendix 8 from any of the Inspection & Certification agencies given in Appendix-28 to the effect that: (a) The consignment does not contain any type of arms, ammunition, mines, shells cartridges, radio active contaminated or any other explosive material in any form either used or otherwise. (b) the imported item(s) is actually a metallic waste/scrap/ seconds/defective as per the internationally accepted parameters for such a classification. (c) The country of origin of the metallic waste scrap. (II) copy of the contract between the importer and the exporter stipulating that that consignment does not contain any type of arms, ammunition, mines shells, cartridges, radio active contaminated, or any other explosive material in any form ei....
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....orter ________________________________ (a) Name ________________________________ (b) Address ________________________________ (c) Telephone No. ________________________________ (d) E-mail ________________________________ 2. Details of import: Description of metallic scrap Quantity Value Country of origin 3. Details of tests carried out:_________________________________ DECLARATION/UNDERTAKING 1. The consignment at column 2 above does not contain any type of arms, ammunition mines, shells, cartridges, radio active contaminated or any other explosive material in any form either used or otherwise. 2. The imported item at column 2 above is actually a metallic scrap/seconds/defective as per the internationally accepted parameters for such a classification. 3. I/we hereby declare that the particulars and statements made in this certificates are true and correct and nothing has been concealed or held therefrom. Date_________ Official Seal Signature ____________ Designation __________ Name....
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....s not yet been cleared from a Customs Port, ICD/CFS or LCS, (ii) Category-2:- Scrap which is to be loaded for shipment to India after 15-10-2004." "5. As regards Category-2, i.e. future imports of metal scrap, the following procedure will be followed, namely:- (i) Import of metal scrap in shredded form will be permitted through all Ports/ICDs/CFSs/LCSs without any pre-shipment inspection certificate. (ii) Import and clearance of metal scrap in unshredded, compressed or loose form would be permitted only at the following Customs stations. Such consignments need not be shifted to the premises of the importer (except for BOU and SBZ units). Efforts should be made, with the help of port authorities/custodians, to identify and segregate an open area for storage and examination of metal scraps at these Customs stations:- 1. Chennai, 2. Cochin, 3. Ennore, 4. JNPT, 5. Kandla, 6. Mormugao, 7. Mumbai, 8. New Mangalore, 9. Paradip, 10. Tuticorin, 11. Vishakhapatnam, 12. ICD, Tughlakabad, New Delhi, 13. Pipava, 14. Mundra, and 15. Kolkata. (iii) In all future cases, metal scrap in unshredded, compressed or loose form will have to be a....
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.... presented for clearance, the petitioners apprehended that the Pre-shipment Inspection certificate issued at the country of origin/port of loading may not be accepted by the Customs Department on the ground that it is in violation of Director General of Foreign Trade (DGFT) Policy Circular No. 19/2004-09, dated 18-2-2005. The petitioners, therefore, rushed to this Court for the above stated relief. 6. In effect, the plea of the petitioners is that so long as the petitioners have the Pre-shipment Inspection Certificate in the Format as per Annexure-I to Appendix 28, they should be allowed to clear the goods. The Department should not insist that they will go by the DGFT Policy Circular No. 19/2004-09 dated 18-2-2005. Therefore, the controversy revolves around the DGFT Policy Circular No. 19/2004-09 dated 18-2-2005 which read as follows:- "Policy Circular No. 19/2004-09 Dated: 18-2-2005 To All Licensing Authorities, All Commissioners of Customs, Subject: Inclusion of branch offices in Appendix 28 of the Handbook of Procedures. Requests have been received for including branch offices of Inspection agencies which are already registered under Appendix 28 of the Hand....
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.... Mr. T. Chandrasekaran appearing for the Department referred to the counter-affidavit and contended that the petitioners have rushed to this Court merely on an apprehension that the DGPT Policy Circular No. 19/2004-09 dated 18-2-2005 will be put against them and the Pre-shipment Inspection Certificate will be rejected. The writ petitions are premature as the Department has not taken any specific stand with regard to the import end the certificates produced for clearance. The Department has not issued a show-cause notice. No order rejecting the Pre-shipment Inspection Certificate has been passed and the petitioners have simply rushed to Court to pre-empt the Department from taking any action as per law. According to the Department, if the petitioners submit the Pre-Shipment Inspection Certificate in terms of DGFT Policy Circular No. 18/2004-09 dated 21-10-2004 as provided under para 2.32 of the Handbook of Procedure, Volume-I there will be no impediment in the clearance. The certificate issued by the inspection Agency has to be verified by the Customs Authorities and tested whether it is in accordance with para 2.32 of the Handbook of Procedure (Volume-I) 2004-09 as amended. In this....
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....ation necessary for the assessment of duty on the imported goods or the export goods, as the case may be; or (b) Where the proper officer deems it necessary to subject any imparted goods or export goods to any chemical or other test for the purpose of assessment of duty thereon; or (c) Where the importer or the exporter has produced all the necessary documents and furnished full information for the assessment of duty but the proper officer deems it necessary to males further enquiry for assessing the duty the proper officer may direct the duty leviable on such goods may, pending the proper officer may direct that the duty leviable on such goods may pending the production of such documents or furnishing of such information or completion of such test or enquiry, be assessed provisionally if the importer or the exporter, as the case may be furnishes such security as the proper officer deems fit for the payment of the deficiency, if any, between the duty finally assessed and the duty provisionally assessed." In this case, the proper officer has not completed the assessment and there is no order passed under Section 47 of the Act for home clearance. The issue is at the stage of....