TaxTMI 
TaxTMI 
2021 (1) TMI 454
X X X X Extracts X X X X
X X X X Extracts X X X X
....ribunal. 4. In rebutted the objection raised by the Ld. AR, the Ld. Counsel submits that the issue before this bench is neither involve any question of classification nor of rate of duty nor of interpretation of any exemption notification and nor of valuation, therefore, the appeals can be heard by this bench and the goods are being perishable nature. 5. As stated by the Ld. Counsel these appeals do not have any issue of rate of duty, valuation, classification or benefit of any exemption notification, the applications of early hearing of the appeals are allowed and as agreed by both sides the appeals are also taken for disposal today itself. 5. The Ld. Advocate for the appellant submits as under:- (ii) Brief Facts In both the appeals, Dry Dates falling under CTSH 08041030 were imported from Dubai having country of origin Saudi Arabia (in short impugned goods). In appeal no. C/60425/2020, bill of entry no. 6596563 dt. 23.01.2020 filed by M/s Findoc Impex - the impugned goods were cleared by Customs after SIIB investigation; subsequent to clearance impugned goods were sold by importer to M/s N.K Impex India and from their godow....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e duty if any can be demanded, if any new evidence brought on record. (iv) Ground for denying provisional release other than those taken in seizure memo. In the operative part of seizure memo, the reason for seizure has been mentioned as : "In view of the above mentioned facts and circumstances, the aforesaid detained goods appears to have been imported by way of misdeclaration of country of origin with an intent to evade payment of appropriate custom duty ", Both in the provisional release order and in order-in-appeal, the impugned goods has been categorized as "prohibited goods" on the ground that appellants had not submitted the attested copy of Phytosanitary Certificate from the country of origin though admittedly Phytosanitary Certificate from the country of re-export had been submitted. It is stated that the Phytosanitary Certificate certifies the fitness of product for human consumption and it has nothing to do with rate of duty, as country of origin is not in dispute vide impugned order. The provisional release order and order-in-appeal passed on entirely different grounds than that in seizure memo. Accordingly, impugned order bad in l....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... required for import of impugned goods. (vi) Reg. CBEC Circular No. 35/2017 CUS The Ld. Authorized Representative of Department emphasized that provisional release of seized goods were rejected inter-alia on the ground that appellant was adamant for their own set of conditions rather than fulfilling the condition of Circular no. 35/2017 CUS dt. 16.08.2017 ignoring the fact that goods do not prove the country of origin and condition of Plant Quarantine. It is submitted that Ld. Adjudicating Authority vide letter issued under C.No. VIII-CUS/Ldh/SIIB/NK Impex/36/2020 dt. 07.07.2020 informed to M/s N.K Impex India on their request for provisional release of seized goods as under (copy annexed at page 50 in appeal no. C/60424/2020), copy attached for ready reference : " 3. In this connection, it is intimated the Central Board of Excise & Customs, New Delhi vide Circular No. 35/2017-Cus dated 16.08.20t7 (copy enclosed) has issued guidelines for provisional release of seized imported goods. As per para2.l and2,2 of the circular the Board has specified the conditions for provisional release of seized imported goods. Therefore, the....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... sympathetic consideration pl. 6. The Ld. AR for the Revenue submits as under:- A. Phytosanitary Certificate issued by the country of re-export Dubai without copy of attested copy from the country of origin:- i) Para 10(2) of Chapter III of Plant Quarantine (Regulation of Import into India) Order, 2003 specifies that "Every consignment of plant species herein specified in Schedule-V, VI and VII shall be accompanied by an original Phytosanitary Certificate issued by the authorised officer at country of origin or Phytosanitary Certificate for re-export issued by the country of re-export alongwith attested copy of phytosanitary Certificate from the country of origin as the case may be, with additional declarations being free from pests mentioned under Schedule-V and VI of this order or that the pests as specified do not occur in the country of origin." has not enclosed. The appellants have failed to submit the attested copy of phyto-sanitary certificate from the country of origin as well as clearance from the PQ authorities, non-compliance of this special condition of import has made the goods prohibited in terms of Sectio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....oth for humans as well as for agriculture. This Court is also of the view that even if the fault cannot be attributed to the petitioner for non-fumigation by the exporter, the consignment in question cannot be allowed to remain in India as firstly, it would lay down a wrong precedent and secondly, nonfulfilment of mandatory condition of fumigation at exporter's end could have serious ramification for our flora and fauna as well as environment in general. (b) The Hon'ble Supreme Court in case of Commissioner of Customs Kochi vs Covai Raja Metals (India) Pvt. Ltd 2016 (335) E.L.T. 583 (S.C.) held that Writ jurisdiction - Exercise thereof against show cause notice - Import of construction sand - Plant quarantine order, applicability of - High Court ought to have avoided invoking writ jurisdiction against show cause notice and should not have gone into applicability of impugned PQ order on import of aforesaid goods - Article 226 of Constitution of India. B. DRI cannot be barred from matter looked into by SIIB:- i) The Bill of Entry of M/s Findoc Impex was marked for first check examination to SIIB, but SIIB had concurred with the importer regarding c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ew the differential duty, due to goods being of Pakistan origin. Joint Commissioner and Commissioner (Appeals) have not dealt specifically with the violation of Plant Quarantine (Regulation of Import into India) Order, 2003 nor has waived the same and therefore to ask for parity on this basis in the form non submission of Plant Quarantine clearance is illogical. The statutory violations cannot be waived off like this. iii). On the other hand impugned provisional release orders 5/2020 (N.K.Impex) and 6/2020(Finodoc) both dated 28/08/2020 has dealt specifically with the violation of Para 10(2) of Chapter III of Plant Quarantine (Regulation of Import into India) Order, 2003 and is reproduced as under: "The appellant request for provisional release of seized goods was rejected vide Provisional Release Order Nos. 5& 6/20 passed by the Joint Commissioner by following para 2 of Circular 35/2017- Cus dt. 16.08.2017 on the following grounds:- (a) The importer is adamant for his own set of conditions rather than fulfilling the conditions of Circular 35/2017- Cus dt. 16.08.2017 ignoring the facts that the i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s is subject matter of the investigation by DRI. b). M/S N.K.impex has not even applied for clearance under the PQ information system for the impugned LIVE B/E No. 6887043 c) M/s TRB International has not even applied for clearance under the PQ information system for three B/E Nos 6922118/6923771/6924057 as covered in the Commr (appeals) order No 340/2020 pertaining to provisional release order 03/2020.DRI is investigating all such past clearences. E. The fact of evasion of customs duty due to goods of Pakistan origin is prima-facie established by scrutiny of the documents recovered from M/s Today Logistics and M/s Today Global Forwarders (India) which revealed trail of emails exchanged between M/s Today Global Forwarders (India) and M/s Aaamro Freight for bringing consignment of dry dates from Karachi port in Pakistan via Jebel Ali to India. For these very reasons, on specific information, the goods were detained and seized thereupon and investigation is underway by DRI. This fact was revealed u....
X X X X Extracts X X X X
X X X X Extracts X X X X
....; The Delhi High Court in case of Mala Petrochemicals & Polymers v. AD.G., Directorate of Revenue Intelligence - 2017 (353) E.L.T. 446 (Del.) held Provisional release of seized goods - Judicial review - Scope of - Powers under Section 110A of Customs Act, 1962 involve exercise of discretion, and scope of its judicial review limited to examination as if discretion exercised rightly, fair and reasonable in circumstances, and not based on irrelevant material. [para 23] .Here the court had ordered for full payment of differential duty and reduced additional BG to 15% from 30% towards penalty. However SC stayed the reduction of BG . Additional case laws and documents enclosed:- (i) Letter dated 22.05.2020 addressed to Deputy Director, DRI by Assistant Director, Plant Quarantine, Amritsar.. (ii) Faridabad CT Scan Centre vs D.G.Health Services 1997(95) ELT 161(SC) (iii) Mala Petrochemicals & Polymers v. A.D.G., DRI 2017 (353) E.L.T. 446 (Del.). (iv) ShivaTex Fabs Ltd. vs UOI 2011(24)STR 525. 7. After hearing both the sides in detail, the short issue involved in the matter is in appeals is that whether the goods ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....antial condition of Plant Quarantine Order 2003. Considering the same and keeping in mind to safeguard the revenue and the goods are of perishable nature, the request for provisional release under Section 110 (A) of the impugned goods is required to be considered by the adjudicating authority taking the view of the same in similar type of situation in the case of other importers, therefore, the matter is remanded back to the adjudicating authority to re-consider the request of provisional release of impugned goods in judicious manner as the goods are in perishable nature within seven days from the date of receipt of this order. 8. In result, the appeals are allowed by way of remand. (Order pronounced on 13.01.2021) ============= Document 1 Summons dated 31.01.2020 were also issued to the Shipping line M/s Avana Logistek Limited, Ludhiana for appearance on 04.02.2020 to tender statement in connection with ongoing enquiry in the case of import of goods vide Bill of Lading No. JEA/LUH/20/23397 dated 10.01.2020. Sh. Nilesh Shukla, Branch Head, M/s Avana Logistek Limited, Ludhiana appeared before the Superintendent (SIIB), Customs ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... & ENVIRONMENT لإعادة التصدير Phytosanitary Certificate for Re-export إلى / منظمة وقاية النباتات ÙÙŠ To/Plant Protection Organization(s) of India من / منظمة وقاية النباتات ÙÙŠ From/Plant Protection Organization(s) of United Arab Emirates of Consignment DXB-APH-02415-1418886 اسم جهة التصدير Ùˆ عنوانها Name & Address of Exporter UAE - مانشيستر شيبينغ إلى إل سي (Ùرع) - 0 العلامات المميزة Distinguishing Marks TCKU994943 1, CBHU842928 8, ZCSU879039 1, FSCU642973 2, GATU840549 4, TTNU901085 7 MOTU050469 1, TRIU926063 4 اسم المستورد Ùˆ عنوانه Øسب البيانات Declared Name & Address of Importer FINDOC IMPEX-10A KARABARA CHOWK OPP KALI SADAK NEAR SHIVPURI CH....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ŠØ§Ù†Ø§Øª أعلام المرÙÙ‚ نسخة أصلية ) ( صورة طبق الأصل مرتقة ( ) منها مع هذه الشهادة Ùˆ اله استنادا على شهادة الصØØ© النباتية الأصلية ) ) والقمص الإضاÙÙŠ ( ) ÙˆØدت مطابقة وأنها معباد ( ) اميدت نسبتها ) ( ÙÙŠ عيراتها الأصلية ) ( ÙÙŠ عبوات جديدة ) المتطلبات المسØØ© البالية المعمول بها لدى الطر٠المتعاقد المستورد Ùˆ أنه أثناء Ùترة تخزينها ÙÙŠ دولة الإماراØ....