TaxTMI 
TaxTMI 
2024 (11) TMI 1088
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....93892 13.10.2023 8527337 29.10.2023 8527417 29.10.2023 8635894 05.11.2023 8650419 06.11.2023 3. Mr.B.Kumar, learned Senior counsel and Dr.S.Krishnanandh, learned counsel appearing on behalf of the petitioners had made the following submissions: 3.1 In this case, the petitioners had imported the "roasted areca nuts" from Indonesia. Subsequent to the said importation, the samples of areca nuts were sent to the CRCL Laboratories, Chennai, for testing. In the report of CRCL Laboratories, Chennai, it has been stated that the moisture content of the imported areca nuts is 3.97%. 3.2 As per the Advanced Ruling Authority, if the moisture content of the areca nuts is between the range of 10% and 15%, it would be considered as "raw areca nuts", whereas, if the moisture content is below 10%, it would be considered as "roasted areca nut". When such being the case, since the moisture content of the areca nuts imported by the petitioner is 3.97%, the same shall be classified as "roasted areca nuts" and in such case, the respondent is supposed to have released the goods imported by the petitioner. However, in spite of the representations made by the petitioner,....
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....isture content is between 10% and 15%, the same shall be classified as "raw areca nuts". In this case, in all the 4 lab reports, it has been categorically stated that the moisture content of the imported areca nuts is below 10%, that too, in 3 lab reports, it has been stated that the moisture content is below 4%. 3.6 Further, he would contend that there is no precise definition has been provided either in the Customs Tariff or anywhere else to define the term "roasted areca nuts". Hence, a set of procedures has been discussed in Advance Ruling and after an elaborate discussion, the Advance Ruling Authorities has arrived at a conclusion that based on the moisture content, the areca nut would be classified either as 'raw areca nut' or as 'roasted areca nut'. The said order passed by Advance Ruling Authorities was confirmed by the Hon'ble Division Bench of this Court vide order passed in CMA.Nos.600, 1206 and 1750 of 2023 filed by the petitioners and the same was not challenged before the Hon'ble Apex Court, whereby the order had attained its finality. 3.7 However, by over-ruling the decision of Advance Ruling Authorities and without considering all the a....
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....ave made it clear that they had not at all referred anywhere else that the imported areca nuts, which were sent for testing as per the order of this Court, as "roasted areca nuts" and they have only mentioned about the moisture content and smell of those areca nuts. 4.4 Further, he would submit that subsequent to the passing of the order-in-original by the respondents, this Court has categorically refused to entertain the plea of the petitioner in the writ appeal filed by them and directed the petitioner to only file an appeal before an appropriate forum in the manner known to law. However, in spite of filing an appeal before the concerned Appellate Authority, the petitioners have wrongly approached this Court, which is contrary to the order passed by the Hon'ble Division Bench of this Court. 4.5 He would also submit that the petitioners have also filed an appeal on the aspect of releasing the goods, upon payment of fine in lieu of confiscation under Section 124 of the Customs Act. However, he would contend that in this case, the confiscation is absolute and since the goods imported by the petitioners are prohibited goods, the same cannot be released upon payment of fine ....
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....sia on various dates by virtue of respective bills of entries, which reads as follows: W.P.No.23836 of 2024: Bill of Entry Date 7941675 21.09.2023 7940425 21.09.2023 8272800 12.10.2023 8160955 05.10.2023 8703860 09.11.2023 8704992 09.11.2023 8834034 18.11.2023 W.P.No.24237 of 2024: Bill of Entry Date 8293892 13.10.2023 8527337 29.10.2023 8527417 29.10.2023 8635894 05.11.2023 8650419 06.11.2023 10. The issues that have to be decided in this case are as follows: i) Whether the areca nuts imported by the petitioners are "roasted areca nuts" or "raw areca nuts"? ii) Whether this Court is a Competent Court to decide about the nature of imported areca nuts, when the alternate remedy of appeal is available for the petitioner? 11. This Court would like to deal with the above 2 issues together and answer the same accordingly. 12. In this case, the petitioners have imported areca nuts by virtue of the respective bill of entries stating that the goods imported are "roasted areca nuts". Upon perusal of tariffs, it is clear that the "raw areca nuts" falls under the Ch....
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.... 5.2. It is pertinent to note that, the applicant in his application to the Customs Authority for Advance Rulings "CAAR"), had submitted that the following processes are involved in the Preparation of Roasted Areca Nut: The raw/fresh areca nut undergoes various process of preparation for roasting, which are detailed below: Firstly, the raw areca nut is de husked and its outer shell is removed Thereafter, the de-husked nut is scattered to check for any visible impurities and the same is cleaned, pursuant to which the raw dehusked areca nut/betel nut is left to dry. Secondly, the cleared and dried de husked areca nuts are fed into the seed roasting oven/machine and heated in the temperature of above 100 Degree Celsius. The roasting is done using firewood/ palm kernel-based ovens/machines and the temperature of the flames is around 400 to 600 degrees Celsius. As a result, the betel nuts would be roasted well beyond 100 degrees Celsius, usually in the range of 130-150 degrees Celsius. Thirdly, the areca nuts are removed from the roasting oven and allowed to cool at normal room temperature, with the assistance of the cooling fans. Fourthly, when the areca ....
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.... were made by way of letter communications (RUD-4), asking them to provide information on the procedures adopted and parameters (Moisture content/carbohydrate/Polyphenols etc.) looked into for testing the areca nuts in identifying whether they have gone through the procedure of roasting. Further, representative samples were drawn and forwarded herewith in Tamper Proof Sampling Covers to test and classify the nuts based on the processing they have gone through (either roasted or raw areca nuts etc.). Test report of Arecanut Research & Development Foundation (R) -Mangalore was received in which it was stated that there is no particular variety known as roasted areca nut and the nuts sent for testing were of Indonesian variety, emitting a smoky smell, containing visible mould infestation and it inter-alia stated that, the areca nuts were not in accordance with the quality standards set out. Letters to CRCL labs (Chennai & Delhi) were sent seeking details on the roasting procedures. As no concrete reply from the above-mentioned agencies or any scientific publications on the tests or parameters adopted in identification of roasted nuts was adduced, recourse in this respect is taken from....
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....with regard to the information of procedures adapted for testing the roasted areca nuts. However, they have not provided any detailed report with regard to the roasting procedure. 18. Further, in the impugned order, the respondent had extracted the paragraph No.4.17 of the order passed by the Advance Ruling Authorities, which reads as follows: "4.17 I have perused a test report issued by ABC Techno Labs India Pvt. Ltd., Chennai dated 31.3.2023 on the samples of roasted areca nut whole & split in which the test result indicates the moisture content, a test parameter, of the samples in the range of 3.34% to 3.84%. Moisture content in raw areca nut is found to be generally in the rage on 10-15%. As per applicant this test report indicates that the products were subjected to the roasting process. This aspect of product testing is a part of Customs Compliance Verification (CCV) process on importation of goods. Jurisdictional Customs Commissionerate carry out process of testing of imported goods with the help of concerned government partner agencies (GPAs) to cross- examine accuracy of declaration of goods in the import documents namely a Bill of entry and it's supporting....
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....that the moisture content of the areca nuts is 7% and 8.8%. On the other hand, according to the petitioners, there was heavy rain due to cyclone and the areca nuts were kept in a warehouse, where the water has intruded, due to which, in the report given by CRCL, Delhi, the moisture content of the areca nuts was shown on the higher side i.e., as 7% and 8.8%, Even though moisture content was shown on the higher side, the same does not exceeds the parameters fixed by the Advance Ruling Authorities for "roasted areca nuts". Further, in the other 3 reports given by CRCL Laboratories, Chennai, FSSAI and M/s.PT Carsurin Medan, the accredited Laboratory in Indonesia, the moisture content of the areca nuts are shown as below 4%. 24. Further, though the respondents had considered and recorded the findings of the Advanced Ruling Authorities, they had failed to provide any reason for non-consideration of parameters fixed by the Advance Ruling Authorities, based on which, one could arrive at a conclusion that the imported areca nuts are roasted or not. In spite of the fact that 3 Laboratories had given reports stating that the moisture content of the areca nuts is below 4%, the respondent ha....
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....d be considered as "raw areca nut" and anything below the said category would be considered as "roasted areca nut". Except the said parameters, no other determinations are available to classify the nature of areca nuts. In this case, most of the laboratories had given their reports stating that the moisture content of the areca nuts is below 4%. 29. Even in the order-in-original, the respondents have recorded that in spite of the request made by the respondents, no concrete reply was provided by the aforementioned laboratories with regard to the roasting procedure of areca nuts. Under these circumstances, the Advance Ruling Authorities had fixed the parameters to determine as to whether the areca nuts are roasted or not and as stated above, no other definition is available to determine as to whether the areca nuts are roasted or not except the said parameters fixed by the Advance Ruling Authorities. However, without following the said parameters, the respondents had applied their own procedures while passing the impugned order, which is not permissible either in the Advance Ruling or in the Customs Tariff or under Customs Act. 30. Further, the respondents had over-exercised t....