TaxTMI 
TaxTMI 
2023 (8) TMI 802
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.... 2018? Oral arguments have been made extensively by the petitioners only on the first issue; though there is a reference to it in the written submissions of the petitioners and the respondents. 2. The facts in these writ petitions are more or less identical and the relief claimed in each of these writ petitions are herein below set out. RELIEF CLAIMIED:- 3. W.P.(MD) No.1250 of 2023 is filed by M/s.Genuine Spices for the following relief: "For the issue of a Writ of Certiorarified Mandamus, to call for the records of the order passed by the respondent vide Order dated 16.12.2022 bearing reference No.C.No.VIII/06/115/2022-IA, and quash the same consequently directing the respondent to permit the petitioner to re-export the goods namely 'Boiled Supari' (Betelnut Product) classifiable under ITC (HS) code 21069030 covered under Bills of Entry Nos.7101263 and 7102157 dated 16.01.2022 and 17.01.2022 without insisting on Bank Guarantee in terms of the said order, and direct the respondent to issue a 'Detention Certificate' for waiver of demurrage and container detention charges in terms of Regulations 6(1)(l) of the Handling of Cargo in Customs Areas Regulations 200....
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....has formed the basis for the dispute for the first time, a dispute with reference to the classification has been raised by the respondents. While the petitioners would contend that the classification of the goods fall under Chapter 21069030, however it is the case of the Department/respondent that it falls within the classification Chapter 08028020. 6. It appears from the pleading that the goods were detained for a prolonged period and therefore, the petitioner in W.P.(MD) No.1250 of 2023 had filed W.P.(MD) Nos.13643 and 13644 of 2022 for a provisional release of the goods. These writ petitions were disposed of by an order dated 07.07.2022, wherein this Court had directed the petitioner to make an application under Section 110A of the Customs Act, 1962 seeking a provisional release. On such application being filed, the adjudicating authority was directed to dispose of the same, after hearing the petitioners and after a prima facie determination of the classification of the commodity within two weeks. The goods covered under the respective bill of entry were to be released provisionally subject to the petitioners furnishing personal bond for the full value of the goods and furnishi....
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....lassification of CTH 0802 and not CTH 21069030 as projected by the petitioners. Further, these goods have been prohibited for import as per G.O.Ms.No.20/2015-20 (this is the notification that has been stayed by the High Court of Karnataka). The respondents would further submit that the order in W.A.No.935 to 942 of 2002 has been complied with and the bank guarantee has been asked only as security for the provisional release. It is their case that Section 110A of the Act empowers them to collect security in addition to the furnishing of a bond. 11. The respondents would further state that it is only a show cause notice that has been issued for the following reasons:- a) A correct description and classification of the goods have not been provided. b) Confiscation is proposed for contravening the provisions of Section 111 (d) and 111 (m) of the Act and consequently imposition of penalty under Section 112 and 114 (a) of the Act was also proposed. 12. The petitioners, who had been granted two personal hearings, have not attended the same. It is the case of the respondents that the bank guarantee has been demanded only to cover the redemption fine and penalty, which can be imposed ....
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....gment in Sankar Pandi's case in para 6 of its judgment. 17. He would also submit that with regard to classification no penalty is leviable unless the Department is able to show that the assessee has acted dishonestly or with the distinct object of breaching the law and in support of this argument, he would rely upon the judgment reported in 1990 (47) E.L.t. 161 (SC) (Akbar Badruddin Jiwani Vs. Collector of Customs) and the judgment reported in 2015 (321) E.L.T. 29 (Mad) (Novel Digital Electronics Vs. Commissioner of Customs (Imports), Chennai), which follows the earlier judgment of Akbar Badruddin Jiwani. 18.He would conclude his arguments by contending that the judgment of the Division Bench of this Court in W.A.(MD) No.1782 of 2021 and W.A.(MD) No.586 of 2022 and M.P.(MD) No.4839 of 2022 would be binding on this Court for the reason that the respondents have accepted and followed the aforesaid judgment by permitting the provisional release of the goods for home consumption/re-export on executing of a simple bond and waiving the requirement of executing a bank guarantee for the same. These arguments have also been more or less adopted by Mr.B.Sathish Sundar, who would add tha....
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....assification, redetermine the assessable value, to decide if the goods have to be confiscated for contravening the law and for arriving at the penalty. 21. He would submit that in W.A.(MD) No.556 of 2022 (The Assistant Commissioner of Customs - Imports, Custom House, Tuticorin and another Vs. M/S.Mahadev Enterprises, represented by its Proprietor, Shri Sohil Suchak, Nagpur 440 002), the Division Bench while directing the importer to execute a bond has also hastened to protect the Department's interest by permitting them to collect any additional charge permissible under law. He would also draw strength from the very provisions of Section 110A. The bank guarantee has been called for only as security for any redemption fine or penalty that may become payable at the time of adjudication. He would counter the argument and distinguish the judgments submitted by the petitioners in support of their case that no redemption fine was leviable in case of re-export by contending that in the cases cited on the side of the petitioners final adjudication had been completed, whereas in the instant case it is still pending adjudication. He would submit that the quantum of redemption fine is fi....
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....asis for the show cause has been stayed by the Karnataka High Court and the same has not been varied or set aside. 25. The issue of confiscation would arise only if the goods are "prohibited" and the issue of classification is still pending adjudication. Another factor that engages the attention of this Court is the fact that in all the earlier imports the Department had not raised this issue of classification. The records would further show that although in the earlier writ petitions and appeals the petitioners had requested for a provisional release of the goods, after the disposal of the writ appeals the petitioners have requested to re-export the goods. Therefore, the direction to consider the provisional release in terms of Section 110A of the Customs Act now stands converted to the issue as to whether 're-export' can be granted by just receiving a bond. 26. In this regard, reference need to be made to the judgment in W.A.No.556 of 2022, which was an appeal filed by the Department challenging the order in W.P.(MD) No.8916 of 2022. The writ petitioners therein had only sought to re-export the very same product which is the subject matter of these writ petitions. The l....
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....mail dated 13.12.2022 requested for re-export of goods based on the release order for Re-export granted to M/s.Mahadev Enterprises, Nagpur vide this officer letter C.No.VIII/10/28/2022 - Adjn. Dated 29.07.2022. But I find that in the said case, the importer I.e., M/s.Mahadev Enterprises, Nagpur had requested the Hon'ble High Court only for re-export of imported goods, which was accepted by the Hon'ble High Court and the orders of the Hon'ble High Court were duly followed by the department. However, in this case, I find that importer had initially requested for provisional release of goods and Hon'ble High Court directed the department to consider the application of the importer for provisional release under section 110A of Customs Act,1962 and dispose the same on merits in accordance with law. However, in view of the present request of the importer, I am inclined to allow re-export of the imported goods on execution of a bond for an amount of Rs.4,28,83,177/- ( Rupees Four Crores Twenty eigh lakhs eighty three thousand One hundred & Seventy Seven only) along with Bank guarantee for and amount of Rs. 1,32,00,000/- ( Rupees One Crore and Thirty Two Lakhs Only). ORD....
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....the purpose underlying conferment of such power. The requirements of reasonableness, rationality, impartiality, fairness and equity are inherent in any exercise of discretion; such an exercise can never be according to the private opinion. 165. It is hardly of any debate that discretion has to be exercised judiciously and, for that matter, all the facts and all the relevant surrounding factors as also the implication of exercise of discretion either way have to be properly weighed and a balanced decision is required to be taken. " 32. Therefore, it is evident that on a reading of the order one must be able to infer the exercise of discretion which in the case of W.P.(MD) Nos.1250 and 1252 of 2023 is absent. 33. In the case of the petitioners in W.P.(MD) Nos.1250 and 1252 of 2023 there is no adverse comments as in the case of the petitioner in W.P. (MD) No.1391 of 2023, who is alleged to be a habitual offender violating the provisions of the Customs Act by removing the confiscated goods on an earlier occasion. The petitioners in the other two writ petitioners have been importing the very same product on earlier occasions and it is also not the case of the Department that they ....