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2022 (10) TMI 646
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....ates for the petitioner in Special Civil Application No.17109 of 2022, learned senior advocate Mr.Kamal Trivedi with learned advocate Mr.Manav Mehta for the petitioner in the other petition and learned advocate Mr. Priyank Lodha for the respondent authorities, in both. 3. The two petitioners of the first petition are the importers and its agent respectively who imported at Mundra Port cargo of Soyabean which were allegedly genetically modified and prohibited good, as were another cargo of Pigeon peas, both of Mozambique Origin. Both the cargo travelled through the sea in the vessel MV Polaris Z (IMO 9109512), the owner of which is the petitioner of the Special Civil Application No.17831 of 2022. 3.1 The petitioners of the first captioned petitions- the importers, made the following prayers. "(i) to set aside the illegal and arbitrary Seizure vide Memo dated 1st July 2022 comprising of Pigeon Peas consignment of 3363.5 MT detailed in Bill of Entry Nos. 1007108 and 1007106 and the Soybean consignment weighing 13,289.50 MT detailed in Bill of Entry Nos. 1007101, 1007098, 1007096, 1007105 and 1007104; (ii) to set aside the seizure vide Memo dated 1^st July 2022 ....
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....ased to quash and set aside the said Seizure Memo dated 1st July 2022 and Order in Original dated 30th August 2022; (b) direction to the Respondents to release of the Vessel MV Polaris Z (Imo 9109512) from its seizure vide Seizure Memo dated 1st July 2022." 3.1.3 Following interim prayer was made. "To provisionally release the Vessel upon such terms and conditions as this Court may deem fit." 3.2 As observed in the first order while issuing notice on 1.9.2022, learned advocate for the petitioner was permitted to furnish copy of the petition in advance to the office of learned Additional Solicitor General and it was further observed that he shall assist the court on the next date as to how the goods genetically modified Soyabean, which are stated to be not permitted to be imported to India, could be treated, pending consideration of the controversy of the petition. 3.2.1 On 8.9.2022 following order was passed. "The grievance in this petition is directed against the seizure by customs authorities by memo dated 1.7.2022, the goods identified as pigeon-peas, which is the consignment of 3363.5 MT, detailed in bill of entry No.1007108 and 1007106. The ....
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....for a value of USD 3,500,000 and is nowhere near the insured value as stated by the Respondents." 3.2.3 The previous order dated 8.9.2022 was referred to and it was further observed in order dated 15.9.2022. "4. As there was no prohibition for import of Pigeon Peas, the consignment of which was also seized by the custom authorities, and which fact learned advocate for the parties also could not dispute, he was asked by the court to get instructions about the release of the said part of the cargo. In response, learned advocate for the respondents, in course of the hearing today, stated that since Pigeon Peas are the goods which could be permitted to be imported and unloaded, there would be no inhibition in law in permitting the said cargo to be unloaded. 4.1 In support of his submission, learned-advocate for the authorities produced copy of email communication dated 15.9.2022 issued by him from one Shri Shrikant Mantri, Deputy Commissioner, SIIB, Mundra Customs. 4.2 The instructions contained in the said communication from the authority reads as under. "Respected sir, With respect to the pigeon peas it is to be submitted that A total 3....
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....ld no. 1 contains about 3663 MT of Pigeon Pea alone, while the remaining Holds 2, 3 and 4 contain Soyabean. All the holds are structurally independent and secure. Thus, there is no mixing, comingling, pilferage whatsoever between cargo in each of the Holds. Goods sorted and stored into each hold is separate and distinct. Hence, Pigeon Peas are at no point mixed with the Soyabean and therefore there is no basis to claim mixing or cross-exposure between soyabean and pigeon peas which are stored in distinct and different holds on board the vessel M V Polaris." 4.5 Learned advocates for the parties in view of the above factual position, agreed to submit that both the cargos are segregated cargos in independent hold and one could be unloaded without touching or affecting the other. 5. What is obtained from the above set of facts is that it is not in dispute between the parties that the cargo of Pigeon Peas, having tested through sample method and found nongenetically modified are the goods the import of which is permissible to this country. The cargo thereof therefore could be allowed to be unloaded by the importer pending the controversy relating to another cargo, all....
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....f which the Plant Quarantine Station, vide their letter dated 26.08.2022, informed the present respondent that destruction and deportation of the goods are two options, however, destruction through incineration of such huge quantity i.e. 13,500 MTS may not be feasible as well as environment friendly. Therefore, the deportation of the impugned goods is the feasible way if the law permits. Copy of the response from the Plant Quarantine Station dated 26.08.2022 is annexed herewith and marked as Annexure R1." 2.1 Further mentioned in paragraph 9 is thus, "9. In view of the above typical circumstances, wherein the Genetically modified goods, can neither be cleared in India nor destruction of the same is preferable, the impugned goods may be deported as suggested by the Plant Quarantine Station, Mundar pending completion of the investigation and subject to the provisions of the Customs Act, 1962 more specifically the provisions pertaining to provisional release and provided that the concerned parties including the importer co-operate in the investigation. The concerned parties with respect to the Goods as well as the vessel, may apply for provisional release as per sect....
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.... to be taken by the competent authority in his case also. 5. Responding to the above factum of pending applications by both the petitioners for provisional release of the goods as well as the vessel, learned advocate for respondent no.3 stated that the said applications which have remained undecided, shall be decided by the competent authority. He further stated that the order which may be passed by the competent authority would be placed on record of the petition on the next date." 3.4 When the petitions came up for consideration on 29.9.2022, respondent No.3 filed additional affidavit in response to what was observed by the court in order dated 22.9.2022. On behalf of the petitioner Nos.1 and 2 also additional affidavit was filed, they were taken on record. It may be stated that learned advocate for the respondent No.3 produced copy of communication dated 27.9.2022 received by e-mail from the Deputy Commissioner SIIB, Mundra Customs, instructing his learned advocate about the aspect of provisional release of the goods allegedly genetically modified Soyabean and the conditions proposed to be imposed. The copy of the said communication is also kept on record. 3.4.1 O....
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....etitioner has stated in para 5 of the affidavit that they are agreeable in respect of the condition Nos. (i) and (iii), however the petitioners find that the condition No. (ii) as harsh. It was further contended that the amount of penalty etc. would be finalized only at the time of adjudication, therefore requiring the petitioners at this stage to furnish bank guarantee to the tune of Rs.21 crores is not justified. 4. Today further affidavit dated 30.9.2022 came to be tendered by respondent No.3 in which it was inter alia contended that the conditions were required to be imposed on the petitioner for the provisional release of genetically modified Soyabean, that the said conditions were in nature of security to protect the interests of the revenue, therefore they were justifiably proposed. Reference to Section 112 of the Customs Act was made by learned advocate for the respondents to submit that once the goods were found to be liable for confiscation, penalty action under Section 112 (a)(i) mandated about the penalty which may vary up to the value of the goods. Giving of bank guarantee was justified with reference to the said aspect. Also relied on provisions of Section 114(AA) ....
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....e of cargo is justified. Also justified is to put the petitioner to condition that they would unload the cargo of goods of allegedly genetically modified Soyabean at Mosambique Port taking back the same to the said port and shall produce the certificate of unloading to the competent customs authorities of the Mundra port. 5.1 As noted above, the petitioners have fairly agreed to abide by the conditions. In the above view, for the purpose of provisional release of the goods - allegedly genetically modified Soyabean, in order to deport the said goods, the petitioners would comply with the following conditions. (i) The petitioners - importers shall furnish the bond to the tune of Rs.84 crores being entire value of the cargo of genetically modified Soyabean. (ii) The petitioner shall file undertaking before this court that the cargo will be taken back to the Mosambique port and it will be unloaded there. After unloading the same, the certificate shall be obtained from the authorities of the Mosambique port about unloading the entire cargo thereat and the same shall be submitted to the customs authorities at Mundra Port, which shall be done within four weeks from to....