TaxTMI 
TaxTMI 
2022 (7) TMI 724
X X X X Extracts X X X X
X X X X Extracts X X X X
.... at USD 1,500.00 per Metric Ton and totally USD 40560/- (CNF) for 27.04 Metric Tons. The above goods were supplied by M/s.Royal Tharcho International Company Limited, Myanmar. The petitioner had filed Bill of Entry No.7556557, dated 18.02.2022, for clearance of the above said goods through Tuticorin Port. They declared that the above goods are classifiable under 2106 9030. The goods are from Myanmar Origin. 3. The petitioner submitted all the necessary documents such as Commercial Invoice, Packing List, Bill of Lading, Certificate of Origin, Combined Declaration and Certificate issued in Myanmar under Duty Free Tariff Preference Scheme by India for Least Developed Countries vide Certificate Reference No.eYGNDFTP-00306/2022, Fumigation Certificate and Phytosanitary Certificate issued by the Republic of the Union of Myanmar, Department of Agriculture, to the Customs. 4. The learned counsel for the petitioner submitted that the petitioner has filed Bill of Entry for Home Consumption and sought for clearance of the goods. They also claim the release of the goods under CTH 2106 9030 at Nil rate of duty and on payment of IGST at 18% and also furnished Least Developed Countries Cert....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Circular in Circular No.22/2004-Customs, dated 03.03.2004, directing the authorities that in the matter of classification disputes, the consignment should be allowed to be cleared on provisional basis as a matter of right, unless the goods intended for clearance is totally prohibited or banned under any law for the time being in force or where prosecution is contemplated. In this case, the goods are Betel Nuts and there is no such prohibition or contemplation. 9. The learned counsel for the petitioner further submitted that the issue had started due to the letter issued by the DRI, dated 27.01.2022, wherein, eight of the traders who had imported Betel Nuts awaiting clearance through Chennai Port were given a direction as follows: "2. In this regard, the said import consignments have been kept on hold/detained for further examination keeping in view of the import policy provisions with respect to import of betel nuts/areca nuts: (i) The import of Areca Nuts over and above CIF Rs.251 per Kg is free and import below CIF Rs.251 per Kg is prohibited in terms of DGFT Notification No.20/2015-2020 dt. 25.07.2018. (ii) Supplementary note 4 to Chapter 21 of the....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... facie, moot as to whether the above product could be categorized/utilized/understood to be 'supari'." 12. The learned counsel for the petitioner further submitted that in one of the cases pertaining to M/s.Unik Traders for a subsequent clearance, the Commissioner of Customs (Appeals-II), Chennai had passed the following order: "7. From the above discussions, I find that the adjudicating authority has denied the re-testing of the impugned goods to avoid delay in order to comply the Hon'ble High Court of Madras direction. However, in the present circumstances where the FSSAI, Mumbai test report is in contradiction to the CRCL Lab and the request made by the appellant in view of grounds of appeal cited above I find it is necessary to re-test the impugned goods in the jurisdictional FSSAI. Therefore, I remand the case to the adjudicating authority for retesting of the impugned goods in the jurisdictional FSSAI lab. Since, the principles of natural justice has not been followed, the adjudicating authority may re-examine the matter afresh and pass appropriate orders as deemed fit. As the cargo is perishable in nature and since the cargo is already provisionally a....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... The invoice value has been over valued to avail the benefits of the scheme. Pending classification, the release of goods cannot be made. Further under Section 110-A of the Customs Act, the quantum of security is at the discretion of the authority. 16. He submitted that the Hon'ble Supreme Court in the case of Raj Grow Impex LLP reported in 2021 (377) E.L.T. 145 (S.C.), had held that when a statutory authority is invested with discretion, the same deserves to be left for exercise by that authority. He further placed reliance in the case of S.T. Enterprises Vs. Commissioner of Customs (Chennai) [2021 (378) E.L.T. 514], affirmed by the Hon'ble Supreme Court [2021 (378) E.L.T. A142] with regard to "betel nuts whole" merits classification under Chapter 8 specifically under Chapter 0802 80 10 as classified by the department and on Crane Betel Nut Powder Works Vs. CCE, Tirupati, [2007 (210) E.L.T. 171], for the proposition, crushing betel nuts into smaller pieces and sweetening the same with essential/non-essential oils, menthols, sweetening agents, etc., did not result in manufacture of a new and distinct product. 17. He has also stated his objections in the counter-affid....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion imposed by the Government of India on the import of Areca Nut below a specific value. c. With respect to the prayer of the petitioner for the provisional release of the subject seized goods, it is submitted that the subject consignment has been seized under Section 110 of the Customs Act 1962. The manner of dealing with seized goods is enshrined in Section 110A of the Customs Act. Section 110A permits provisional release of the seized goods pending adjudication. However, CBIC, vide Circular No.35/2017-Cus, dated 16.08.2017 issued guidelines to the Adjudicating Authorities for dealing with provisional release of the seized goods under Section 110A of the Customs Act 1962. The said relevant para of the said Circular No.35/2017 is reproduced below: " The following guidelines are being issued for guidance of the adjudicating authorities in order to ensure uniformity and to streamline the divergent procedures being followed for grant of provisional release of imported goods which are seized under Section 110 of the Customs Act, 1962. Section 110A of the Customs Act, 1962 states that "Any goods, documents or things seized under Section 110, may, pending the order of....