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TaxTMI 
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2024 (2) TMI 33
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....the Writ Petitions are being disposed of. 2. In the following Writ Petitions, the petitioner has challenged the following Show Cause Notices:- Table 1:- Sl. No. W.P.No. Date Show Cause Notice No. Date Bill of Entry No. 1. 7905 of 2023 24.01.2023 No.06/2023 13.09.2022 No.2424168 2. 7907 of 2023 24.01.2023 No.07/2023 24.09.2022 No.2599722 3. 7909 of 2023 24.01.2023 No.08/2023 24.09.2022 No.2599722 4. 7911 of 2023 14.02.2023 No.09/2023 13.09.2022 No.2424171 5. 7915 of 2023 14.02.2023 No.10/2023 13.10.2022 No.2867223 6. 7918 of 2023 14.02.2023 No.11/2023 13.10.2022 No.2867208 7. 27828 of 2022 30.09.2023 No.17/2022 25.08.2022 No.2163427 3. In W.P.No.7960 of 2023, the petitioner has challenged the Order in Original No.15/2023-Gr.1 dated 06.02.2023 pursuant to the Show Cause Notice No.17/2022 dated 30.09.2022 impugned in W.P.No.27828 of 2022. 4. In W.P.No.26225 of 2022, the petitioner has prayed for a Mandamus to release the consignment of Betel nut imported by the petitioner covered by Bill of Entry No.2163427 dated 25.08.2022 which i....
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....hority has erred the subject goods under CTH 21069030 by not emphasizing on the word "preparation" mentioned in Explanatory Note 2 to Chapter 21 of the IISN." 9. I must at the outset clarify that correction of error, as contended by the concerned Commissioner of Customs, Chennai -11 is not an objective covered by the scope of section 28K of the Customs Act read with regulation 26 of CAAR Regulations, 2021. 10. Further, on careful consideration of the documents submitted by the concerned Commissioner of Customs and having pronounced advance rulings on the same question of classification of betel nut items, albeit disagreeing with the rulings of the erstwhile AAR, I am not able to accord the crucial role ascribed to the process of "roasting" as has been claimed by the concerned Commissioner. The process of manufacture of four varieties of supar?, involved inter alia boiling and/or drying/roasting, with the objective to minimize moisture content. On perusal of the said advance ruling, it is obvious to me that the ruling of the Hon'ble AAR was not dependent on the involvement or otherwise of the process of "roasting". Therefore, I am of the considered opinion that....
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....030 8,39,06,933 Total (in Rs.) 48,71,91,240 53,59,10,363 13. The petitioner has filed the above mentioned Bill of Entries wherein the petitioner has declared the imported "Betel nut" as product known as "Supari" (Unflavoured Supari) classifiable under Tariff Sub Heading 2106 90 30 of the 1st Schedule to Customs Tariff Act, 1975 on the strength of Advance Rulings dated 31.03.2017 in AAR/44/Cus/02/2017 of the AAR. 14. Tariff Sub Heading 2106 90 30 under Tariff Heading 2106 of the 1st Schedule to Customs Tariff Act, 1975 reads as under:- Table 3:- Tariff Item Description of goods Unit Rate of duty Standard Preferential Areas (1) (2) (3) (4) (5) 2106 Food Preparations not elsewhere specified or included 2016 90 Other: ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 2106 90 30 Betel nut product known as "Supari" Kg. 150% - 15. It is the contention of the Department, that the product imported by the petitio....
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....aration containing Betelnuts, but not containing any one or more of following ingredients, namely, lime, katha (Catechu) and tobacco whether or not containing any other ingredients such as cardamom, copra or menthol. 6. Applicant submits that subject products do not contain lime, katha (catechu) ortobacco, that in view of the processes carried out in preparation of Imported goods, addition of other items and in the light of the specific provision in Supplementary Note 2 to Chapter 21, the goods proposed to be imported merit classification under heading 21069030. Applicant relied on the Ruling dated 07.08.2015 of this Authority passed in the matter of M/s Excellent Betelnut Products Pvt. Ltd. Vs. Commissioner of Customs, Jawaharlal Nehru Custom House, Nhava Sheva in Application No. AAR/44/Cus/21/2014 wherein the identical goods are held classifiable under 21069030. 7. It is noticed that the comments in respect of said application were called for from Principal Commissioner of Customs, Chennai-Il and Commissioner of Customs (Nhava Sheva-II). Commissioner of Customs, Chennal-II agreed with the applicant that the subject items are classifiable under Chapter Heading 21....
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....ing and packaging. Therefore, exact hours of boiling of Betelnut is not so significant in said process of preparation than its boiling in water with lemon peel and / or food starch for the purpose of imparting texture to the product as also other processes. Therefore, contention of Revenue is not correct. 11. Further, Revenue submits that unless the product is seen at the time of import i.e., nature of ingredients, manufacturing process and packing, it would be difficult to decide the classification. It is observed that applicant has narrated in detail the nature of ingredients and manufacturing process of subject goods. Therefore, contention of Revenue is unfounded. 12. In view of the above, we rule as under; The goods sought to be imported, namely; 'unflavoured supari', 'flavoured supari', 'API supari and 'Chikni supari' being processed Betelnut products which do not contain specified ingredients, namely, lime, katha and tobacco but containing other flavouring material/ additives are classifiable under Customs Tariff Heading 2106 90 30." 18. As long as the Clarification Ruling of AAR dated 31.03.2017 remains undisturbed, class....
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....tion (2) to Section 28J of the Customs Act, 1962, as amended by Section 92 of the Finance Act, 2022, advance ruling referred to in sub-section (1) shall remain valid for three years or till there is a change in law or facts on the basis of which the advance ruling has been pronounced, whichever is earlier. 25. In view of the above, Rulings of AAR is now confined to for a further period of three years from the date Finance bill received the assent of the President of India. 26. Thus, if Ruling No.AAR/44/Cus/02/2017 dated 17.03.2021 is to be upheld and is not disturbed, it has to remain in force for a period of further three years till 2025, unless it is validly annulled under an order passed under Section 28-K of the Customs Act, 1962. 27. Before proceeding to deal with the challenge to the impugned notices in the rest of the Show Cause Notices as in Table-1 and impugned Provisional Release Order dated 27.03.2023 passed in respect of Bills of Entry in Table-2 and whether the importer is entitled for a Writ of Mandamus in W.P No.26225 of 2022 and Writ of Certiorarified Mandamus in W.P.No.11888 of 2023, I propose to first answer the issue in W.P.No.30426 of 2022, as the class....
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....ds as under:- Section 28KA: Appeal:- (1) Any officer authorised by the Board, by notification, or the applicant may file an appeal to the High Court against any ruling or order passed by the Authority, within sixty days from the date of the communication of such ruling or order, in such form and manner as may be prescribed: Provided that where the High Court is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the period so specified, it may allow a further period of thirty days for filing such appeal." 35. Such an appeal ought to been filed within sixty days of the impugned Order No.CAAR/Del/Isha Exim/02/2022 dated 31.03.2022 before this High Court. Prior to amendment to Section 28KA of the vide Section 5(d)(i) of The Tribunal Reforms (Rationalization and Conditions of Service) Ordinance, 2021, appeal was to be filed before the Appellate Authority namely Authority for Advance Rulings constituted under Section 245-O of the Income Tax Act, 1961. 36. Whether indeed the petitioner had resorted to falsehood or obtained Ruling dated 31.03.2022 in Order No.CAAR/Del/Isha Exim/02/2022 from AAR by giving incorre....
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.... which may be inconsistent with the legislative intent regarding the dispensation explicitly prescribed under Section 31 of the 2005 Act. That would render the legislative scheme and intention behind the stated provision otiose. 18. Suffice it to observe that this decision is on the facts of that case and cannot be cited as a precedent in support of an argument that the High Court is free to entertain the writ petition assailing the assessment order even if filed beyond the statutory period of maximum 60 days in filing appeal. The remedy of appeal is creature of statute. If the appeal is presented by the assessee beyond the extended statutory limitation period of 60 days in terms of Section 31 of the 2005 Act and is, therefore, not entertained, it is incomprehensible as to how it would become a case of violation of fundamental right, much less statutory or legal right as such. 40. If W.P.No.30426 of 2022 was filed within sixty days of passing of the impugned Order dated 31.03.2022 in bearing No.CAAR/Del/Isha Exim/02/2022, all these cases could have been referred to the Division of for passing suitable order. 41. However, W .P.No.30426 of 2022 was filed beyond sixty d....
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....are excluded from its provisions. Chapter Note (1) of the First Schedule to the Customs Tariff Act, 1975 reads as under:- "1. This Chapter does not cover: (a)mixed vegetables of heading 0712; (b) roasted coffee substitutes containing coffee in any proportion (heading 0901); (c) flavoured tea ( heading 0902); (d) spices or other products of headings 0904 to 0910; (e) food preparations, other than the products described in heading 2103 or 2104, containing more than 20% by weight of sausage, meat, meat offal, blood, insect, fig 2103 2104, containingther aquatic invertebrates, or any combination thereof (Chapter 16); (f) *products of heading 2404; (g) yeast put up as a medicament or other products of heading 3003 or 3004; or; (h) prepared enzymes of heading 3507." 48. Supplementary Note 2 to Chapter 21 to the First Schedule to the Customs Tariff Act, 1975 has defined the expression "betel nut product known as Supari" as follows:- "2. In this Chapter "betel nut product known as Supari" means any preparation containing betel nuts, but not containing any one or more of the following ingredients, n....
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....chedule to the Customs Tariff Act, 1975 or under Sub-Heading 2106 90 30 of the First Schedule to the Customs Tariff Act, 1975 and whether it is covered by Ruling dated 31.03.2017 of AAR in AAR/44/Cus/02/2017 is a question of fact. Court cannot determine the same as long as the Clarification/Ruling is in force, imports satisfy the description it should be followed. 56. Therefore, whether the imported consignment is covered by Ruling dated 31.03.2017 of AAR in AAR/44/Cus/02/2017 is to be ascertained only by the Assessing Officer. 57. It is noticed that earlier under Foreign Trade Policy 2015-2020 import of "Areca Nut" falling under residuary Chapter Sub Heading 0802 80 90 of the First Schedule to the Customs Tariff Act, 1975 was freely importable. The Minimum import price was Rs.162 per Kilogram. 58. By Notification No.35/2015-2020 dated 17.01.2017 the minimum price for import of Areca Nuts was enhanced to Rs.251 per kilogram issued by the Director General of Foreign Trade, New Delhi in the exercise of power conferred under Section 3 of the FT (D&R) Act, 1992, read with Paragraph 1.02 and 2.01 of the Foreign Trade Policy, 2015-2020, minimum price for import of Areca Nuts was....
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....ove CIF Rs.251/- per kilogram is free and import below CIF Rs.251/- is prohibited. 62. Notification No.20/2015-2020 dated 25.07.2018 issued under the provisions of the Foreign Trade (Development and Regulation) Act, 1992 read with Foreign Trade Policy 2015-2020 was intended only to protect the domestic farmers so that there is parity in price and level playing. 63. The Central Government in the exercise of power conferred under Section 14(2) of the Customs Act,1962, had fixed the tariff value in respect of the imported goods as described in Table-3 and the corresponding Tariff Heading in Column-II to Notification No.68/2022-Customs(NT) dated 12.08.2022. Notification No.68/2022-Customs(NT) dated 12.08.2022 amended Notification No.36/2001-Customs(NT) dated 03.08.2001. 64. Notification No.68/2022-Customs(NT) dated 12.08.2022 amended Table-I to Notification No.36/2001-Customs(NT) dated 03.08.2001 and added Table II & Table III to the said Notification. 65. For the purpose of valuation of the Areca Nut under Sub-Heading 0802 80, the Tariff Value was fixed at 6853 US $ per metric ton. Consequently, the imported consignments of "Areca Nuts" imported can be provisionally assess....