TaxTMI 
TaxTMI 
2022 (2) TMI 1472
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....submit that a series of orders have been made by different Hon'ble Single Judges as well as a Hon'ble Division Bench in Al Qahir International case (M/s.Al Qahir International v. The Commissioner of Customs) vide W.A(MD) No. 1782 of 2021 (order dated 22.12.2021) directing provisional release under Section 110A of said Act on certain conditions. 4. The last of the order was made by this Court in M/s.Travancore Solvents & Oils case (M/s.Travancore Solvents & Oils v. The Commissioner of Customs, Custom House, Tuticorin) being order dated 12.01.2022 vide W.P(MD) No.22788 of 2021 and W.M.P(MD) No.19248 of 2021. 5. Learned counsel for writ petitioner and learned Revenue counsel submit in one voice that the captioned matter is directly and squarely cover by the aforementioned M/s.Travancore Solvents & Oils case which reads as follows: 'The writ petitioner has imported '30120.00 kilograms of Black Pepper Sri Lankan origin' (here in after 'said consignment' for the sake of convenience and clarity). A 'Bill of Entry dated 13.07.2021 bearing reference No. 4656562' (here in after 'said Bill of Entry' for the sake of convenience and cla....
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....ormed that there is a change in learned Revenue counsel and in place of Mr.R.Aravindan, learned Senior Standing Counsel, Mr.B.Vijay Karthikeyan, learned Senior Standing Counsel for Central Excise and Customs would now be representing the respondents. Registry to show the name of Mr.B.Vijay Karthikeyan, learned Senior Standing Counsel for Central Excise and Customs from the next listing. 2. Learned Revenue counsel submits that a counter-affidavit has been email filed but the same has not been placed before me. Let the Registry do the needful before the next listing. 3. List on 06.01.2022.' Proceedings dated 06.01.2022: 'At request of Revenue Counsel, list under the Admission Board on Monday (10.01.2022).' Proceedings dated 10.01.2022: 'Read this in conjunction with and in continuation of earlier proceedings made in previous listing on 04.01.2022. 2. Today the counter-affidavit filed by the respondents forming part of a typed set of papers (referred to in 04.01.2022 proceedings) has been placed before this Court. 3. List in the admission board tomorrow. 4. List on 11.01.2022.' ....
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.... to Excise & Customs, New Delhi' in the case on hand. Former circular pertains to 'Export' and the latter pertains to 'Import'. Learned Revenue counsel drew the attention of this Court to paragraphs 2.1 and 2.2 of latter circular and argued that there should be sufficient security. Learned Revenue counsel also drew the attention of this Court to two Division Bench orders one dated 07.09.2017 made in W.A.Nos.1019 & 1020 of 2017 (The Commissioner of Customs (Exports) v. M/s.Sri G.P.R.Leathers) and another dated 20.02.2019 made in W.A.Nos.236 of 2019 and batch cases, (Unik Traders v. Directorate of Revenue Intelligence, Chennai) reported in 2019 (367) E.L.T.353 (Mad.). 5. By way of reply, learned Senior Counsel pointed out that in the aforementioned three orders, pressed into service by him the facts are identical, the consignment is same i.e., Black Pepper and one of the three orders, namely, order dated 23.08.2021 made in W.P(MD) No.13790 of 2021 has been carried in appeal by way of W.A(MD) No.1782 of 2021 which was disposed of by a Hon'ble Division Bench by order dated 22.12.2021. There is no disputation or disagreement before me that the consignmen....
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.... the Customs Department comes to a conclusion that the goods in question are prohibited goods, within the meaning of notification dated 25.07.2018, the needful as per law shall be undertaken by the Customs Department. That apart, the Customs Department shall also make a recommendatory report to the DGFT to initiate action against the petitioner within the meaning of Section 8 of the Foreign Trade (Development and Regulation) Act, 1992. The needful as indicated above to pass orders of making provisional release of the goods concerned shall be undertaken within a period of one week from the date of receipt of a copy of this order. (iii) It is further made clear that, insofar as the claim to be made with regard to the waiver charges, it can be considered separately in accordance with law.' Paragraphs 12 to 14 of order of Division Bench: '12. To make it clear, we modify the condition imposed by the Writ Court to furnish bank guarantee to furnish a bond to the same value. So far as the adjudication is concerned, the authorities are to proceed with the same without being influenced by this order as this order does not express any opinion in that regard.....
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....7 : 1972 AC 877 (HL) [Sub nom British Railways Board v. Herrington, (1972) 1 All ER 749 (HL)]]. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases.' 9. That leaves us with Al Qahir International case. Al Qahir International case is virtually identical, only the names of the importers, quantity of the consignment, dates of import, dates of bills of entry are different. To be noted, there is no disputation or disagreement the factual matrix is identical as between Al Qahir case and the matter on hand now before this Court. More importantly, Al Qahir International case has been accepted by the Department and learned Revenue counsel has placed before me the electronic mail instructions received by him and a scanned reproduction of the trail mail is as follows: 10. Besides the above, this Court is also informed that the other two orders of two other Single Judges dated 14.07.2021 in M/s.Global Metro v. The Commissioner of Customs and others and 03.12.2021 in M/s.Southern Trade Links v. The Deputy Director, Directorate of Revenue Intelligence have also been accepted by the Department, complied....
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....er falling under Entry No.0904 11 30 only if the CIF value of the import was Rs.500/- per kg or above. Imports of value less than Rs.500/- per kg is prohibited. It was the apprehension of the DRI that the goods have been over valued by the petitioner in order to render them freely importable, the word 'free' being used in the context of 'permitted to be imported', as the commodities are otherwise subject to duty at the rate of 8%. 5. Being of the view that the value of the consignments was in excess of what was the true value, investigation was undertaken by the DRI. The ongoing investigation takes note of various documents that appear to indicate that the pricing of the commodity was less than that revealed by the petitioner and also that full consideration had not been remitted to the supplier overseas. Moreover, the DRI states that it is in possession of information to the effect that sales of the consignments importer earlier had been undertaken by the petitioner in the open market at a sum less than the import value. 6. On the basis of the aforesaid material stated to have been gathered by the DRI, the apprehension that arose was that the good....
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....ntrolled by Shri Arshad Shajahan. M/s Global Metro has imported black pepper by declaring the unit price in the range of Rs 501 to Rs. 512/kg. The terms of payment as per the Invoice in most cases is around 50% on DP/DAP terms i.e. Documents against Payment and balance on DA terms L.e. Documents against Acceptance. The time limit for making DA payment is 90 days to 120 days as per commercial Invoice. The said importer has made payments to the overseas muppliers only to an extent of payment against DP terms as per the Commercial Invoice. However, he has not paid the balance amount to the overseas supplier even after the expiry of time period of 90-120 days. He has accepted all the imported Black Pepper without raising any objection with the overseas suppliers on quality issues, in sum, there is no reason recorded by M/s Global Metro to make the lower payments. As per the documents recovered such as Sales Contract, email communication recovered during the search of the premises of M/s Global Metro it is found that the actual unit price of Black Pepper imported by M/s Global Metro from Sri Lanka is between USD 3- USD 4 per Kg L.e. much below the declared uni....
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...., if the provisional release is not granted, the entire consignments would have been compromised. The balance of convenience would thus require, in my considered view, that the consignments be released, subject to the petitioner being put to terms. This would also ensure that the interests of the Department are securely protected. The petitioner will remit the entire duty and furnish bond to the satisfaction of the Assessing Authority in regard to interest payable, penalty or charges that may be deemed necessary. 14. The impugned order is set aside. It is made clear that nothing contained in this order will stand in the way of an independent enquiry by the authorities in the on-going investigation. The Deputy Commissioner of Customs/R3 is directed to quantify the duty and bond amounts and communicate the same to the petitioner forthwith and release the goods with in a week of such remittance by the petitioner. 15. On the issue of waiver of demurrage charges, the issue is left open to be pursued before the authorities in the light of applicable Rules and Regulations. 16. This Writ Petition is disposed as above. No costs. Connected Miscellaneous Petitions a....