TaxTMI 
TaxTMI 
2024 (2) TMI 380
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....or direction in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the Impugned Order dated 12.09.2023 bearing Order in Original No. 09/ADJ/ADC- AB/Hazira Port/2023-24. B) This Hon'ble Court be pleased to issue a writ of mandamus or any other appropriate writ, order or direction permitting home clearance to the impugned goods or transship the impugned goods to a permitted customs port; C) Strictly in the alternative and without prejudice to the prayers A to D, this Hon'ble Court be pleased to direct the Respondent Authorities to forthwith refund the entire duty paid by the Petitioner of Rs. 9,90,65,737/- under Challan No. 2045346537 to the Petitioner, with applicable interest and further direct the Respondent Authorities to allow re-export to any destination, without application of redemption fine or penalty;" 4. The brief facts of the case are as under: 4.1. It is the case that the Petitioner is engaged in the manufacture and import of insecticides, pesticides and other agrochemicals including technical such as "Cyantraniliprole Technical" (the "Impugned Goods") into India. 4.2. The Petitioner is a registered....
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.... of "Nhava Sheva". It is pertinent to note that the Petitioner has been importing the impugned goods into India since 2020 and manufacturing insecticides and mixtures ever since 2020 and has not effected import clearance at Hazira Port. 4.8. That, the Petitioner categorically requested for clearance of the impugned goods as there was no intentional misdeclaration, suppression or collusion to unlawfully clear the goods and also because the entire duty amount had also been paid and there was merely a procedural restriction on the release of the impugned goods at the Hazira Adani Port. 4.9. The petitioner by letter dated 06.09.2023 clarified to the proper Officer that the goods be released having met all valid requirements and, in the alternative, the Petitioner may accept transshipment to permissible port of entry upon payment of redemption fine. 4.10. Thereafter, the Respondent No. 3 passed the impugned order on 12.09.2023, holding that the goods imported by the Petitioner were "prohibited" as the same were in violation of the prohibition under Insecticide Rules and was mandatorily liable for "re-export". 5. Learned Senior Advocate Mr. Joshi submitted that pursuant to the impugn....
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....6. Since, the impugned goods are lying at the port the detention, demurrages and other charges are mounting and vide communication dated 21.10.2023, the Shipping Line has also threatened to dispose the impugned goods and charge heavy charges and interest which is causing further losses to the Petitioner. It is stated that the container is incurring demurrage approximately at the rate of Rs. 25,000 per day and has already incurred huge demurrage costs of Rs. 25 Lakhs as on date. 5.7. That the Petitioner vide letter dated 27.10.2023 requested permission to warehouse/ store the goods in a customs bonded warehouse and also be permitted to de-stuff the container and arrange for return of the empty container no. DRYU9187765 to the Shipping Line so that further mounting charges and demurrages and penalties may be avoided, however, such permission is not yet granted and the Petitioner is suffering grave economic harm. 5.8. The Petitioner herein raised the aforesaid concerns vide communication dated 1st November 2023 and requested for personal hearing from the Respondent Authorities. However, the said Authorities have neither responded to the said communication nor permitted the Petitione....
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...., it is submitted that the Petitioner has intentionally tried to clear the consignment by filing the Bill of Entry at Hazira Port which is not a specified port Import of insecticide are prohibited at Hazira port as per Insecticides Rules, 1971. Further, this act of the Petitioner tendered the goodsliable for confiscation under Section 111 (d) of the Customs Act. Accordingly, the Petitioner was given an option to pay fine in lieu of confiscation to redeem goods under section 125 of the Customs Act, 1962 e. With respect to Para E, it is submitted that the Petitioner on his own paid the applicable duty to clear the consignment for home consumption despite the facts that the goods being insecticide cannot be cleared from Hazira Adani Port. Further, they consistently claimed that they have not violated any law or policy. However, rule 45 of the Insecticide Rules, 1971 which governs the places of Import of Insecticide into India being amended by the Insecticides (Fourth Amendment) Rule 2017, as notified by the Ministry of Agriculture and Farmer Welfare. the places at which the insecticides may be imported - "No insecticides shall be imported into India except through one of the fol....
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....ld be considered to be prohibited goods, and (b) this would not include any such goods in respect of which the conditions, subject to which the goods are imported or exported, have been complied with. This would mean that if the conditions prescribed for import or export of goods are not complied with, it would be considered to be prohibited goods. This would also be clear from Section 11 which empowers the Central Government to prohibit either 'absolutely' or 'subject to such conditions' to be fulfilled before or after clearance, as may be specified in the notification, the import or export of the goods of any specified description. The notification can be issued for the purposes specified in sub-section (2). Hence, prohibition of importation or exportation could be subject to certain prescribed conditions to be fulfilled before or after clearance of goods. If conditions are not fulfilled, it may amount to prohibited goods. This is also made clear by this Court in Sheikh Mohd. Omer v. Collector of Customs, Calcutta and Others (1970) 2 SCC 728] wherein it was contended that the expression 'prohibition' used in section 111 (d) must be considered as a total....
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....ules, 1971. However, in the instant case, Petitioner has intentionally tried to clear the goods at Hazira port in violation of the Insecticide Rules. This act of the Petitioner rendered the goods liable for confiscation under the Customs Act. Accordingly, the case was adjudicated and re-export of the goods was allowed subject to payment of redemption fine and penalty by the proper officer. h. With respect to Para H, it is submitted that the goods has been confiscated for violation of the provisions of the Customs Act read with Insecticide rules, 1971. Further, the goods were allowed for re- export on payment of redemption fine and penalty, as the same cannot be cleared from Hazira port. i. With respect to Para I, it is submitted that the goods were confiscated under Section 111(d) of Customs Act for violation of the provisions of the Customs Act and Insecticide rules. Further, the Petitioner can redeem the goods on payment of redemption fine imposed. However, imported goods being insecticide can not be cleared for home consumption from Hazira port on payment of redemption fine and it is pertinent to mention that the Petitioner had never applied for transshipment of the goods ....
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....f out of charge and query was raised in the system. Subsequently, the case was adjudicated on merits and Petitioner had paid the redemption fine and penalty imposed. Further, once the condition of the order in original were met, Petitioner can apply for refund of already paid duty and the same will be decided on merit as per the Customs Act. n. With respect to Para N, it is submitted that Customs have to enforce Customs Act or any other allied act for the time being in force for goods imported into India.. o. With respect to Para O, it is submitted that the Bill of Entry can not be cleared for home consumption from Hazira Port as per Insecticide Rules, 1971. However, Petitioner has been given an option to re- export the goods. p. With respect to Para P, it is submitted that it is onus of the Petitioner as well Custom Broker to check all the compliance for the goods to be imported as per section 17 of the customs Act read with Bill of Entry (Electronic Integrated Declaration and Paperless Processing) Regulations, 2018. q. With respect to Para Q, it is submitted that as claimed by the Petitioner, due to supplier's mistake goods had arrived at Hazira Port and therefore....