2023 (3) TMI 26

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.... public interest litigation was filed in the Hon'ble Supreme Court of India to regulate import of raw petroleum coke [ITC (HS) 27131100)] by various industries which was free at the material time. The Respondent was also one of the parties in the said proceeding as it was importer of RPC. The Hon'ble Supreme Court directed the Environment Pollution (Prevention & Control) Authority for NER (EPCA) to submit a report for the purpose of regulating import of RPC by various users. EPCA recommended that import of RPC is essential to the country and recommended for issue of license to selected users. For calciners, the Supreme Court accepted the Report of EPCA to permit it to import RPC as calciners use RPC not as fuel but as feed stock. The Supreme Court observed that calciners use high sulphur content RPC and that since it uses as feed stock, it would be allowed to import specified quantum of RPC. The Respondent was allowed to import RPC for end use of anode making for aluminum industry. The Hon'ble Supreme Court interpreted the BIS requirement also. 2.2 EPCA in its report also recommended utilization of 7 to 8% sulphur content in raw petroleum coke for manufacturing CPC where sulphur....

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....e goods. 2.7 On 28th September, 2021 the DRI officers took the sample from the Dock as well as from its factory and sent the sample to the Central Revenue Control Laboratory (CRCL), Kolkata for testing for the purpose of sulphur content. Though the test of sulphur content was a test under Bureau of Indian Standard Act under the standard provided by IS 17049 and the said test would only be done by a notified Environment Laboratory. DRI sent the samples to its laboratory who are not equipped to test in accordance with IS Standard. A list of environmental laboratory notified CRCL, Kolkata is not a notified laboratory. 2.8 The Respondent objected to the test by CRCL, Kolkata by its letter dated 18th November 2021 and 24th November 2021. 2.9 On 19th November 2021, DRI seized unused stock of 4510 M.T. of RPC lying at its factory premises and 45.79 M.T. of RPC lying at K.P. Dock under Section 110 of the Customs Ac, 1962. 2.10 On or about 30th November 2021, the Respondent sought provisional release of goods under Section 110A of the Customs Act, 1962. 2.11 The Respondent challenges the Show Cause Notice on the ground of jurisdiction and illegality by filing a writ petition ....

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.... clearance by the customs imported by the M/s. Neo Carbon Limited, on testing of the goods as order by the concerned assessing officer, hence, during the pending adjudication, the impugned goods merit provisional release as per provisions of the Customs Act. 21. In view of the discussion made above, I hold that the impugned order is liable to set aside. 22. In view of the above, I set aside the impugned Order by the Adjudicating authority and the detained / seized goods are ordered to be released provisionally under Section 110A of the Customs Act, 1962 as per the provisions of the Customs Act, 1962." 3. With regard to Respondent M/s. Neo Carbons Pvt.Ltd., the brief facts of the case are that the Respondent imported two consignments of Raw Petroleum Coke (RPC) comprising of 9681.27 Mts. And 4919.00 Mts. Under two Bills of Entry Nos. 4633032 dated 10.07.2021 and 4632911 dated 10.07.2021 respectively under the import License No. 0111000247, which were assessed to duty under Section 17 of the Customs Act 1962 finally. Accordingly, the Respondent paid assessed duty and thereafter the respective clearance order under Section 47 ibid was passed by the proper officer ....

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....t provisional release of goods under Section 110A of the Customs Act, 1962. 3.5 The Respondent challenged the SCN on the ground of jurisdiction and illegality by filing a Writ Petition in the Hon'ble High Court at Calcutta which was first moved before the Hon'ble Justice Md. Nizamuddin on 14.03.2022, later on, the Respondent preferred an appeal to the Division Bench which was disposed of by the Hon'ble Division Bench by an order dated 29.03.2022. The Hon'ble Division Bench directed disposal of the application under Section 110A of the Customs Act in terms of the order passed by the Hon'ble Single Judge. 3.6 The Additional Commissioner of Customs (hereinafter referred as to "the adjudicating authority") issued notice for hearing of the application under Section 110A of the Customs Act, 1962 on 04.04.2022 and 05.04.2022. 3.7 On 27.04.2022. the adjudicating authority passed an order having No. KOL/CUS/ADC/PORT/Gr.I/34/2022 rejecting the application for provisional release filed by the Respondent, which was received by an email and downloaded by the Respondent on 29.04.2022. 3.8 The said order was challenged by the Respondent before the Ld.Commissioner(Appeals), who passed ....