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2023 (11) TMI 182
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....e petitioner, of goods described as "Lithium Ion Cell". Such imports were subject matter of various bills of entries, out of which, the consignments under seven bills of entries were cleared for home consumption. Such clearance was granted after the Customs Officer undertook assessment of these seven bills of entries on physical examination of each and every consignment. The consignments under the following bills of entries were cleared for home consumption:- Sr. No. Bill of Entry No. Date 1 4019963 03.01.2023 2 4019965 03.01.2023 3 4020344 03.01.2023 4 4019034 03.01.2023 5 4021424 03.01.2023 6 4557264 08.02.2023 7 4556787 08.02.2023 3. However, in respect of two companion bills of entries both dated 8 February 2023 (for short 'the subject bills of entries') the Customs Authorities / respondents have detained the goods and/ or have not permitted the petitioner to clear the same. The details of which are as under:- Sr. No. Bill of Entry No. Date 8 4557146 08.02.2023 9 4558082 08.02.2023 4. It is the petitioner's case that in respect of the seven consignments which were granted cl....
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....oods and if such an application is made, such application be decided by the concerned Customs Authorities in accordance with law. The order dated 17 July 2023 passed by this Court on the said writ petitions filed by the petitioner, is required to be noted, which reads thus:- 1. There is common challenge in both these petitions, namely to an order-in-original dated 23 May 2023, although, in relation to batch of goods subject matter of distinct bills of entry. The prayers in the petitions are that the impugned orders be quashed and set aside. 2. The basic premise on which such prayers are made, is to the effect that the impugned order(s)-in-original are ex facie in violation of the principle of natural justice inasmuch as no show cause notice was issued to the petitioners before passing the impugned orders. 3. The case of the petitioners in both these petitions is that the petitioner is a subsidiary of Bajaj Auto Limited. The petitioner is inter alia engaged in the manufacture and sale of Electric Scooters and parts thereof. Earlier on 3 January 2023 petitioners had imported "Lithium Ion Cell" vide various Bills of Entries. The assessment of all these Bills....
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....hich attracts a civil consequences could have been passed. 7. We find merit in such contentions as urged by Mr. Hidayatullah. The nature of the order is quite drastic. When such an order was to be passed certainly, the law would require strict adherence of the principles of natural justice and by prior issuance of a show cause notice. The petitioner ought to have been put to notice of all the grounds on which the goods would be liable for confiscation and of any other consequential orders which would be attracted. 8. We may observe that in passing the impugned order-in-original Additional Commissioner of Customs has exercised powers of confiscation and has imposed penalty Section 124 of the Customs Act 1962 which mandates issuance of a show cause notice, before confiscation of goods. Such provision stipulates that no order confiscating any goods for imposing any penalty on any person shall be made under Chapter-XV of the Customs Act, unless owners of the goods or such person is given notice in writing with prior approval of the Officer of the Customs not below the rank of an Assistant Commissioner of Customs, informing the owner or such person, on the ground on wh....
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....ng the freedom should be reasonable, the orders made on the basis of that law should also be reasonable." 10. In Metal Forgings and Another V. Union of India and Others (2003) 2 SCC 36 in dealing with a case of a demand under Section 11-A of the Central Excise Act, the Court had observed that in the said case show-cause notice as required in law was not issued by the Revenue. The contention of the Revenue was to the effect that since necessary information which was required to given in the show-cause notice was made available to the appellants therein in the form of various letters and orders etc., issuance of such demand notice in a specified manner was not required in law. The Supreme Court repelled such contention of the Revenue. While upholding the orders of the Tribunal the Supreme Court has observed that the Tribunal had rightly come to the conclusion that such material could not be treated as show-cause notice, which was inadequately treated as show-cause notice as contemplated under the rules as applicable. It was also observed that issuance of show-cause notice in a particular form is a mandatory requirement of law. 11. Adverting to the above principles o....
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.... the bills of entries in question complies with all the norms prescribed by the Bureau of Indian Standards (BIS), as are necessary in law and more particularly, as required by the 2018 Regulations. It is hence contended that the detention and/or the respondents not permitting the release of the goods, is patently illegal. The petitioner contends that it is not in dispute that the packages of the consignment are affixed with the standard mark, which is in conformity with the Regulation 6 of the 2018 Regulations. It is also in conformity of the public notice No. 157 of 2018 dated 13 December 2018, issued by the respondents. 8. The petitioner has contended that in fact the Custom Authorities have breached the conditions under Regulation 6, inasmuch in issuing an earlier public notice, namely Public Notice No. 136 of 2018 dated 8 October 2018 in paragraph (6) thereof, the requirements of Regulation 6 have been completely misapplied and / or erroneously set out. It is contended that such condition as contained in the said public notice is being illegally foisted by the respondents, on the petitioner's consignment, by asserting that the requisite BIS marks are required to be affixed o....
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....etition:- "27. This Hon'ble Court be pleased to issue a Writ of Certiorari or an appropriate direction or order calling for record of the case and after going into legality and propriety thereof and to quash the impugned Notice dated 1st September 2023; 28. This Hon'ble Court be pleased to stay the operation of impugned Notice dated 1st September 2023 and injunct the Respondent No. 3 and / or his subordinate Officers from taking any steps in furtherance thereof;" 11. The petition is opposed on behalf of the Department. Two reply affidavits are filed. The first reply affidavit as filed, is of Itha Ramalingeswara Rao, Assistant Commissioner of Customs, dated 8 August 2023. There is second affidavit also of Itha Ramalingeswara Rao dated 11 October 2023. On a perusal of the reply affidavits, the stand of the respondents appear to be that the clearance of the imports in question cannot be permitted for want of conformity with the BIS standard and more particularly, the same being hit by the Public Notice No. 136 of 2018 dated 8 October 2018. It is contended that the product in question "Lithium Ion Cell" is supplied by a supplier in China and imported from Hong Kong....
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....s noted by us above, which were similar goods and identically situated which were released to the petitioner for home consumption, after the said bills of entries were assessed, on physical examination of the goods, more particularly, on the similar BIS compliances. The consignments in question, subject matter of the two bills of entries not being cleared by the respondents, are not differently placed from the goods under other seven bills of entries which stand cleared. 16. The respondents in not permitting release of the goods, whether at all are justified in doing so, can now be considered. 17. As noted above, the basic contention as urged on behalf of the respondents is of the consignment in question as sought to be cleared by the petitioner not being in conformity with the BIS standards, inasmuch as the "actual product" as sought to be imported has not been affixed with the BIS mark and which, according to the respondents, ought to have been undertaken by the manufacturer. In this regard, one of the admitted facts is to the effect that the product is manufactured by a foreign manufacturer known as "Panasonic", which has obtained a registration licence / under the 2018 Re....
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.... have a mark on the package, which requirement is met by the petitioner, in respect of the consignment in question of the two bills of entries. 20. The respondents despite the clear provisions of paragraph 6 of the Schedule II Scheme I of the 2018 Regulation (supra), in our opinion, have chosen not to apply the requirement as it stands, however, they are applying Public Notice No. 136 of 2018 dated 8 October 2018 issued by the Office of the Commissioner of Customs, NS-III, Mumbai Customs Zone-II. The relevant paragraph in regard to the labelling requirement, as set out in the said Public Notice and which is being applied to the consignment in question is also required to be noted, which reads thus:- "Public Notice 136 of 2018  ....
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....the respondents to the consignment in question. This apart, Public Notice No.136/2018 in any case was clarified by the subsequent Public Notice No.157/2018 dated 13 December 2018 which reads thus :- "Dated: 13.12.2018 PUBLIC NOTICE NO. 157/2018 Subject- Provisions related to display of labelling to be displayed Attention of the Importers, Exporters, General Trade and all other stakeholders is invited to PN 136/2018, issued on 08.10.2018. 2. Para 6 thereof provided that, "BIS does not permit the use of stickers for display of BIS Standard Mark on any of the products under its product certification scheme," This sentence is deleted with immediate effect. Consequently, the clearance of goods covered by the RCR Order should not be disallowed merely because stickers have been affixed to the goods to display the Standard Mark. 3. Further, it is directed that the provisions of Electronics and Information Technology Goods (Requirements for Compulsory Registration) Amendment Order 2016 under F.No. 37(I)/2013-IPHW/ (Pt.2) dated 10.02.2016 issued by Department of Electronics and Information and Technology (Deity)/ Ministry of Electronics and Information Tec....
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....n to law and the same being counter productive to the green initiatives of the Government of India, to promote electric vehicles. 24. We also find substance in the petitioner's contention that there is no justification whatsoever as to how a different yardstick could be applied by the respondents to the goods in question, when similar goods under seven bills of entries were released and only two bills of entries were subjected to an illegal detention by the respondents. 25. We have also heard learned counsel for the parties on the issue, as to what is the actual legal status of the goods in question, as on date. Mr. Subir Kumar, learned counsel for the respondents has fairly stated that there is no seizure memo issued and physical possession of the goods has not been taken over by the customs. There is nothing on record to indicate that the goods are actually seized under any seizure memo or physical possession of the goods are taken by the customs. If this is the situation, then certainly it is a case of a simplicitor detention of the goods without exercising powers under section 110, which was available to the Customs to seize the goods. It would not be in dispute that any ....