TaxTMI 
TaxTMI 
2023 (10) TMI 1179
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....ely, annexed hereto at Annexure - M and O, respectively; B. This Hon'ble Court be pleased to issue a writ of mandamus or a writ, order or direction in the nature of mandamus or any other appropriate writ directing the Respondent No. 1 to permit re-export of the cargo without any condition; C. Pending hearing and final disposal of the present petition, this Hon'ble Court be pleased to direct the Respondent No. 1 to permit re-export of the cargo without any condition." 4. The brief facts of the case are as under : 4.1. The petitioner is a proprietorship concern engaged in the business of importing and selling Shikakai classified under Entry No. 12119099 of Customs Tariff Act, 1975 (for short "CTA") and is exempted from payment of the whole of Customs duty as specified in the First Schedule of CTA and from whole of Agriculture Infrastructure and Development Cess, leviable under section 124 of the Finance Act, 2021 (13 of 2021) vide Sr. No. 1 of Notification No 96/2008-Cus. dated 13.08.2008. Similarly, Areca nut is classified under Entry No. 080280-90 of CTA and is chargeable to a concessional rate of Customs duty at the rate of 60% against a tariff rate of 7333 per MT, as....
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....ng carried and also serves as a shipment receipt when the carrier delivers the goods at a predetermined destination. It is the case of the petitioner that the Bill of Lading dated 27.09.2022 clearly shows that the petitioner was informed that the quantity packed at the loading port was in terms of the Purchase Order dated 10.08.2022, Sales Contract dated 19.08.2022 and Commercial Invoice as well as Packing List dated 07.09.2022. 4.6. The vessel containing the Cargo arrived at Mundra Port on 16.11.2022. On the same day, the petitioner, through its Customs Broker, M/s. SRV Shipping filed a Bill of Entry for home consumption. The details of cargo mentioned in the BIL on entry are as under: Sr.No Bill of Entry No & Date Item Description Quantity in Kgs Assessable Value (Rs.) 1 3331409 16.11.2022 Shikakai 20220 10,96,638.98 Arecanut 7740 47,56,271.80 Total 27960 58,52,910.78 4.7. On 17.11.2022, before the Cargo was discharged, much-less cleared for home consumption, the petitioner received an email from the Seller that due to an error by the Garage Manager and upon the tallying the stock, incorrect quantities were loaded on the ve....
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....d the investigation and statement of his son, Surendra Singh was recorded on 30.01.2023 and of its Customs broker, M/s SRV Shipping on 21.02.2023 and in both statements it was explained that the error was on part of the Seller in loading the goods and there was no mis-declaration since the Bill of Entry dated 16.11.2022 was filed on the basis of documents. However, the Customs Authorities proceed to seize the Cargo vide a seizure memo dated 08.02.2023 holding that the same are liable to confiscation under the provisions of Sections 111(d), 111(1) and 111(m) of the Customs Act, 1962 (for short 'the Act, 1962') read with section 119 of the Act, 1962. 4.10 It is the case of the petitioner that thereafter on 27.03.2023, the petitioner tendered a letter to the Customs Authorities once again pointing out that it had filed the subject Bill of Entry on the basis of documents. The said Bill of Entry was filed before it came to the knowledge that the Cargo was varying in the quantity as declared in the Bill of Entry. It is also the case of the petitioner that no knowledge or motive can be imputed to the petitioner for such variation and as a matter of fact, the seller has admitted its error....
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.... Commissioner of Customs (Appeals), Ahmedabad challenging the levy of redemption fine and penalty along with the said appeal. 4.12. It is also a case of the petitioner that the petitioner deposited a sum equivalent to 7.5% of the penalty imposed which is in the nature of a pre-deposit and would therefore operate as stay of Order in Original in terms of Circular No.984/08/2014-CX dated 16.09.2014 issued by the Central Board of Excise and Customs, Government of India and since the Cargo is perishable in nature, the petitioner vide letters dated 26.05.2023 and 27.06.2023 requested the respondent No. 1 to permit re- export of the Cargo without insisting for the payment of the entire penalty. However, the respondent No. 1 vide communication dated 10.07.2023 rejected the request for re-export till disposal of the appeal filed by the petitioner or till fulfillment of the condition of payment of penalty in terms of Order in Original. In light of such approach of the respondent No. 1, the petitioner approached the respondent No. 2 vide representation dated 12.07.2023 pointing out that since it had made payment of the entire amount of redemption fine and its appeal is pending wherein a pre....
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....the goods on payment of redemption fine of Rs. 5,00,000/- but at the same time, the order of re-export passed by the adjudicating authority is subject to payment of penalty also and therefore, unless and until the petitioner pays the penalty of Rs. 30,00,000/-, the reexport is rightly not permitted by the respondent No. 2 by the impugned order dated 10th July, 2023. 7. Having heard the learned advocates for the respective parties and considering the facts of the case, it would be germane to refer to Section 125 of the Act, 1962 which reads as under : "SECTION 125. Option to pay fine in lieu of confiscation. -(1) Whenever confiscation of any goods is authorised by this Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods or, where such owner is not known, the person from whose possession or custody such goods have been seized, an option to pay in lieu of confiscation such fine as the said officer thinks fit : 1[Provided that where the proceedings are deemed to be concluded under....