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TaxTMI 
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2021 (12) TMI 198
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....r, namely, the third and fourth respondents have intervened and have stalled the further assessment and clearance of the imported consignments covered by these three Bills of Entries. 4. It is the case of the petitioner that the petitioner is incurring Demurrage and Container Detention Charges for the containers to the liners as the imported consignments are not being allowed to be cleared as the assessment has not been completed by the jurisdictional "proper officers" under the jurisdiction of the second and the third respondent at the instance of the third and the fourth respondents. 5. It is therefore prayed for a further direction to be issued for the issuance of "Detention Certificate" for the waiver of demurrage and detention charges to be paid to the Consignment Freight Station of Balmer & Lawrie, where the imported goods are lying since their import on 22.9.2021 and 29.9.2021. 6. It is the case of the petitioner that the petitioner is a well known importer and dealer of spices and condiments such as Black Pepper, Cassia, Star Aniseeds etc. and Arecanuts (Betelnuts) and is in the said business for over a period of more than two decades. 7. It is further submitted that th....
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....ssessment and clearance. 15. It is further submitted that though the bills of entry were filed on 22.09.2021 and 29.09.2021, the respondents are refusing to release the consignment and are thus inflicting immense financial loss on the petitioner apart from making the import consignments to deteriorate as the imported goods are natural product and are prone to perish due to efflux of time. That apart, it is submitted that the petitioner is incurring detention charges for the container. 16. The Learned Senior Counsel for the petitioner further submits that the Central Board of Excise and Customs, Ministry of Finance (Department of Revenue) has also issued clarification in Circular No.22/2004 - Cus - dated 03.03.2004, wherein it has been clarified that in the case of classification disputes, option to clear the imported goods has to be given for provisional assessment, if the inquiries are going to take time. 17. The learned Senior Counsel for the petitioner further submits that a clearance of the consignments should not be held as the imports are prohibited or banned under law for the timing in force. It is submitted that no prosecution is also in contemplation against the petitio....
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....hable in nature and therefore no useful purpose will be served by allowing the respondents to detain the imported consignment at the container Freight Station of Balmer Lawrie CFS, Chennai from 22nd and 29th September 2021 after their import. 25. The learned Senior Counsel for the petitioner further submits that the imported consignments are attracting detention charges for the containers in which they were imported due to the delay. 26. The Learned Senior Counsel for the petitioner further has drawn attention to the decision of the Hon'ble Supreme Court in recently rendered in the case of Canon India Private Limited Vs. Commissioner of Customs 2021 (376) ELT 3 (SC) where the decision of the Commissioner of Customs Vs. Sayed Ali and another [2011 3 SCC 537 = 2011 (265) E.L.T. 17 (S.C.) has been followed. 27. The Learned Senior Counsel for the petitioner has also drawn attention to Para:18 to 31 of the aforesaid judgment. He submits that the appeals filed by the department in the case of Commissioner of Customs, Kandla Vs. M/s Agarwal Metals and Alloys in Civil Appeal No.3411 of 2020 under similar circumstances was also dismissed vide order dated 31.08.2021 by the Hon'ble Sup....
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....nts have sent the samples to Ashwamedh Engineers & Consultants, a Testing laboratory in Maharashtra to ascertain whether the imported goods namely Arecanuts (Betelnuts) satisfied the requirements of Food Safety and Standards Authority of India (FASAI) to deliberately get an adverse remark to stall the clearance of the imported consignment though there are Testing Laboratories in Chennai and third and fourth respondents have their counter parts in Chennai. 34. Though the copies of these test reports have not been submitted to the petitioner, it is submitted that a report mentioned in the Counter Affidavit of the third and fourth respondents indicate that they were obtained by the third and fourth respondent to frustrate the import. 35. The learned Senior counsel for the petitioner also submits that in one of the report dated 11.11.2021 filed by the respondent indicates that an earlier test report given on 08.11.2021 was modified at the request of the third and fourth respondents to insert remarks[physical appearance and sample] receipt indicating that these reports were stage managed to give an impression that the imported consignment do not meet the standards to satisfy Food Safe....
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....escribed under the Food Safety and standard Act, 2006. 42. It is submitted that the import value of the consignment in question has been declared to be Rs. 100.44 per kilogram and thus the petitioner is prohibited from importing the imported consignment within meaning of Section 2 [33] of the Customs Act 1962. 43. It is further submitted that the Customs Duty on Areca Nuts under Chapter Heading - 08 is 100%. This measure had been taken by the Government of India in order to safe guard the interests of Indian farmers who grow Areca Nuts. 44. It is submitted that the petitioner has imported consignments of Areca Nuts (Betel nut) under Chapter Heading 0802 of the Customs Tariff Act, 1975 Customs Tariff Act but has deliberately classified under CTH 2106 90 30 to circumvent the prohibition under the Commerce Ministry's notification referred to supra. 45. That apart it is submitted that the petitioner has also undervalued the value of the imported consignments falling under Sub Heading 080280 by adopting a wrong classification under CTH 2106 90 30 to overcome the prohibition under the above Notification. 46. It is submitted that the value declared in the three Bills of Entry declare....
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....lling the goods in question in Indian market, they will again seek a fresh "No Objection Certificate" or clearance from the Food Safety and Standards Authority of India (FSSAI). The Affidavit of Petitioner to this effect may be filed in this Court, within a period of one week; ii. On the other hand, to the extent the Petitioner intends to re-export the goods, as according to the Petitioner, such goods had failed to clear the Food Safety and Standards even initially at the time of import itself, the learned Additional Solicitor General Mr.G.Rajagopalan, undertakes to permit the Petitioner to re-export those goods back to the Sri Lankan dealers, subject to the condition that the Petitioner gives a fresh Bond, so that in case any penalty is imposed on the Petitioner, in respect of those re-exported goods, then on the basis of that Bond, the Department may recover the same from the Petitioner. iii. The learned counsel for the Respondent, Additional Solicitor General, on further instructions from Mr.R.Vasudevan, I.R.S., Assistant Commissioner of Customs, who is present in court, submitted that before release of the goods in favour of the petitioner, the re-export of the goods as ind....
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....rcise of its power under Section 6 of the Act. The reason why such a power is conferred on the Central Government is obvious and that is because the Central Government is the authority which appoints both the officers of the Directorate of Revenue Intelligence which is set up under the Notification dated 04.12.1957 issued by the Ministry of Finance and Customs officers who, till 11.5.2002, were appointed by the Central Government. The notification which purports to entrust functions as proper officer under the Customs Act has been issued by the Central Board of Excise and Customs in exercise of non-existing power under Section 2(34) of the Customs Act. The notification is obviously invalid having been issued by an authority which had no power to do so in purported exercise of powers under a section which does not confer any such power 22.In the above context, it would be useful to refer to the decision of this Court in the case of Commissioner of Customs v.Sayed Ali wherein the proper officer in respect of the jurisdictional area was considered. The consideration made is as hereunder:- "16.It was submitted that in the instant case, the import manifest and the bill of entry were....
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....roneously refunded on an import made by any individual for his personal use or by the Government or by any educational, research or charitable institution or hospital, within one year and in all other cases within six months from the relevant date, may cause service of notice on the person chargeable, requiring him to show cause why he should not pay the amount specified in the notice. It is evident that the notice under the said provision has to be issued by the 'proper officer'. 19. Section 2(34) of the Act defines a 'proper officer', thus: 'Definitions.- 2. (34) 'proper officer', in relation to any functions to be performed under this Act, means the officer of customs who is assigned those functions by the Board or the Commissioner of Customs;' It is clear from a mere look at the provision that only such officers of customs who have been assigned specific functions would be 'proper officers' in terms of Section 2(34) the Act. Specific entrustment of function by either the Board or the Commissioner of Customs is therefore, the governing test to determine whether an 'officer of customs' is the 'proper officer'. 20. From a conjoint reading of Sections 2(34) and 28 of the Ac....
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....a single sequence. It is obvious that the Deputy Commissioner took the view that the camera complied with the requirement of exemption i.e. it could only record up to less than 30 minutes in a single sequence. At this juncture, it is not relevant to see whether the Deputy Commissioner was right or not in taking this decision to clear the goods as exempted goods. What is important is to see whether the importers made any wilful mis-statement or suppression of facts and induced the delivery of goods. 28. It is pertinent to note that the importer had asked for a first check and had shown the cameras and the cameras were offered on 20.3.2012 along with Bill of Entry and literature detailing specifications of models. The camera could have been operated to see the length of time of the single sequence and whether recording of the single sequence exhausts the total memory of the camera (including extended memory) and whether the cameras were eligible for exemption. It is difficult in such circumstances to infer that there was any wilful mis-statement of facts. In these circumstances, it must, therefore, follow that the extended period of limitation of five years was not available to any....
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.... Section of the Customs Act, 1962 3 Deputy Commissioner or Assistant Commissioner of Customs and Central Excise i) Sub-section (5) of Section 17; ii) Section 18; iii) Section 21; iv) Section 22; v) Section 26A; vi) Section 28; vii) Section 28B; viii) Section 28BA; ix) Section 30; x) Sub-Section (2) of Section 31; xi) Section 32; xii) Proviso to Section 34; xiiii) Section 35; xiv) Section 42; xv) Sub-section (3) of Section 45; xvi) Second Proviso to subsection (1) of section and subsection (2) of section 46; xvii) Section 48; xviii) Sub-section (3) of Section 54; xix) Section 59; xx) Section 60; xxi) Section 61; xxii) Section 63; xxiii) Clause (f) of Section 64; xxiv) Section 67; xxv) Section 72; xxvi) Section 73; xxvii) Section 80; &n....
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.... Customs 2021 (376) ELT 3 (SC) to the facts of the present case. The Hon'ble Supreme Court has held that, if it was intended that officers of the Directorate of Revenue Intelligence who are officers of Central Government should be entrusted with functions of the Customs officers, it was imperative that the Central Government should have done so in exercise of its power under Section 6 of the Act. The Court further observed that the reason why such a power is conferred on the Central Government is obvious and that is because the Central Government is the authority which appoints both the officers of the Directorate of Revenue Intelligence which is set up under the Notification dated 04.12.1957 issued by the Ministry of Finance and Customs officers who, till 11.5.2002, were appointed by the Central Government. The court held that the notification which purports to entrust functions to a "proper officer" under the Customs Act has been issued by the Central Board of Excise and Customs in exercise of non-existing power under Section 2 (34) of the Customs Act. The Court further held that the notification is obviously invalid having been issued by an authority which had no power to do so ....
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....toms laws, having ramifications beyond the geographical jurisdiction of localized field formations and for collection, coordination and correlation of intelligence with respect to violation of these laws and also to furnish specialized know-how. A beginning was made in 1953, when a nucleus cell, christened 'C.R.I.B.' (Central Revenue Intelligence Bureau), charged with the responsibility of dealing with all matters connected with anti-smuggling and anti-corruption in the Customs and Central Excise organizations all over India was constituted. It was a small unit consisting of an Assistant Collector and two Superintendents within the Directorate of Inspection (Customs and Central Excise), New Delhi but working directly under the Central Board of Revenue. By its very composition, a cell like C.R.I.B., could have a very limited scope for wider activities. But various studies undertaken in this small Cell itself revealed that the menace of smuggling had established deep roots in India, which, in turn, spelt out the dire need for establishing a well-organized Central anti-smuggling Organization for planning and directing the anti-smuggling efforts of the various Custom Houses a....
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....o collect and collate information and to strike swiftly; It is officer-intensive and the ministerial staff has been kept at a minimum; Although small, it is a high-powered organization so that it can issue instructions to Collectors and can command the confidence and respect of the other State and Central organizations with which it has necessarily to deal in order to become effective; It will consist of selected officers, that is, those who by temperament and experience, are equipped to do this specialized kind of work; It will have no routine job of its own in the sense that it is required to collect a certain amount of revenue. It will have complete liberty to act on 'hunches' and only the ends will justify the means it adopts." 68. Thus, the Directorate of Revenue Intelligence was thus constituted on 4th December 1957, for dealing exclusively with the work relating to the collection and study of information on smuggling activities and the deployment of all anti-smuggling resources at the all India level, besides arranging training for the intelligence and Investigation officers of the Custom Houses and Central Excise Collectorates deployed on similar work." 6....
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....security; (r)the implementation of any treaty, agreements or convention with any country; (s)the compliance of imported goods with any laws which are applicable to similar goods produced or manufactured in India; (t)the prevention of dissemination of documents containing any matter which is likely to prejudicially affect friendly relations with any foreign State or is derogatory to national prestige; (u)the prevention of the contravention of any law for the time being in force; and (v)any other purpose conducive to the interests of the general public. 71. The expression "prohibited goods" is defined under Section 2(33) of the Customs Act, 1962, which reads as under. (33) "prohibited goods" means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported, have been complied with; 72. However, under Section 3(2) of the Foreign Trade (Development And Regulation) Act, 1992, the Central Government has power to make provisions for prohibiting, restricting or otherwise....
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....would apply." 75. There is a prohibition of goods falling under Heading 0802 of Customs Tariff Act, 1975, if the value is below vide Notification No. No.20/2015-2020 dated 25.07.2018 of the Ministry of Commerce and Industry, Department of Commerce, New Delhi, if the value is below a specified value. Thus, under Notification No.20/2015-2020 dated 25.07.2018 of the Ministry of Commerce and Industry import of goods falling under 0802 of the Customs Tariff Act, 1975 is deemed to have been prohibited under a Notification issued under Section 11 of the Customs Act, 1962. 76. However, it should be emphasized that it is no part of the duty or function of the third and fourth respondents and their counterparts in Chennai to stall an assessment proceeding by a "proper officer" designated under the Customs Act and the Notification No.40/2012- Cus(NT) dated 2.5.2012. 77. In Union of India and Others VersusRaj Grow Impex LLP and Others 2021 SCC OnLine SC 429, the Hon'ble Supreme Court has reiterated that if the goods are " prohibited," option to redeem the goods under Section 125 cannot be given. It will be useful to refer to para 157 ,158 and 159 from the said judgment of the Hon'ble Suprem....
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....cretion by an authority are expounded in various decisions cited by the parties. We may take note of the relevant expositions as follows: 78. Thus, there has to be a proper determination as to whether there is prohibition of the imported goods. This exercise can be carried only by a "Proper Officer" and cannot be usurped by the third or fourth respondents or their counter parts in Chennai. 79. It should be emphasized that it is no part of the duty or function of the third and fourth respondents and their counterparts in Chennai to stall an assessment proceeding by a "proper officer" designated under the Customs Act and the Notification No.40/2012- Cus(NT) dated 02.5.2012. 80. Merely because the officers of the third and the fourth respondents have powers to investigate by itself means will not mean that they can insist on a "hands off approach" by a competent officer who have been given the powers to assess Bill of Entry filed by an importer. Even if the jurisdictional officer of the DRI from Chennai i.e., the counter parts of the third and the fourth respondents felt that the import was without proper licence and that there was an attempt to import prohibited goods, it is their....
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....y the jurisdictional proper officer's namely, the first and second respondent or the Appraiser (customs) within the meaning of Notification No.40/2012-Cus,(N.T) dated 02.05.2012 who are empowered to complete the assessment whether finally or provisionally. They should therefore complete such assessment within a period of 15 days from the date of receipt of a copy of this order. 88. On the other hand, if the Proper Officer is of the view that there is dispute is only regarding valuation and not classification, imported goods should be released after completing the assessment provisionally under Section 18 of the Customs Act, 1962 within 15 days as noted above. 89. In case of alleged mis-declaration, if the 3rd and 4th respondent's through their counterpart in Chennai exercise powers vested with them under the above notification in Sl.Nos.3 and 4, such exercise will be subject to interpretation and judicial pronouncements to be made in the light of the decision of the Hon'ble Supreme Court in Cannon India Ltd. case. 90. Suffice to state, at this stage, the "proper officer" who have been given the task to assess the Bill of Entry which involves both classification and valuation and....