Bombay High Court
Jumbo Dates vs The Commissioner Of Customs (Import) ... on 21 December, 2023
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2023:BHC-AS:38988-DB
903.WP16014_2023.DOC
Vidya Amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 16014 OF 2023
Jumbo Dates ... Petitioner
Versus
The Commissioner of Customs (Import), Jawaharlal ...Respondents
Nehru Customs House & Ors.
Mr. Anand S. Patil for the petitioner.
Mr. Jitendra B. Mishra a/w. Mr. Dhananjay B. Deshmukh for the
respondents.
_______________________
CORAM: G. S. KULKARNI &
JITENDRA JAIN, JJ.
DATED: 21 December, 2023
_______________________
P.C.
1. We have heard Mr. Patil, learned counsel for the petitioner and Mr.
Mishra, learned counsel for the respondents.
2. The present proceedings concern the import of apples under the subject
Bill of Entry. The prayers as made in the present petition is in regard to the
provisional release of the consignment of apples imported by the petitioner,
which have been detained and not released by the respondents, on the ground
that Notification No. 5/2023 has been issued, which caps the minimum price
of apples for import at Rs.50/- per kg.
3. The contention as urged by the petitioner is that the import in question
and subject matter of the present proceedings is exactly at Rs. 50/- per kg. and
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hence the said notification, which is sought to be foisted on the petitioner, is
not applicable.
4. Learned counsel for the petitioner would also submit that similar issue
had arisen before the Kerala High Court in M/s. Indusina Exim LLP vs. Union
of India & Anr.1, who had also imported apples and had challenged the said
notification. The Kerala High Court by an order dated 11 July, 2023 had
stayed the said notification and, accordingly, permitted provisional release of
apples as imported by M/s. Indusina Exim LLP (supra).
5. Learned counsel for the petitioner would thus submit that apart from the
petitioner being not affected by the said notification, the petition would also
stand covered by such order passed by the Kerala High Court in M/s. Indusina
Exim LLP (supra) and hence, it would be an entitlement of the petitioner to
seek provisional release of apples.
6. Learned counsel for the petitioner has also drawn our attention to an
order dated 8 December, 2023 passed by this Court in the case of M/s.
Indusina Exim LLP vs. The Commissioner of Customs (Imports) & Ors.2 in
which this Court, considering the order passed by Kerala High Court, had
permitted provisional release of the goods in the following terms:
1 Writ Petition No. 22281 of 2023 dated 11 July, 2023
2 Writ Petition No. 15414 of 2023
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"5. We have heard learned counsel for the petitioner and the
respondents.
6. In our view, the petitioner is entitled to provisional release of goods as
prayed for, for more than one reason. Notification No. 5/2023 which
imposes minimum price of Rs.50/- per kg. for import of apples has been
stayed by the Kerala High Court. Secondly, only issue is with respect of
valuation and goods being perishable in nature and further the petitioner is
willing to comply with the terms and conditions to be put forth by
respondent no. 2 for provisional assessment of goods there does not seem to
be justifiable release to detain the goods. In the light of these facts, it would
be in the interest of justice that the petition be allowed in terms of prayer
clause (1).
7. We, therefore, direct Respondent to provisionally assess the Bill of
Entry No. 8733339 within a period of four days from today and release the
goods on the petitioner furnishing the bond."
7. We may also observe that the revenue had filed a Review Petition No.
107 of 2023 praying for review of the aforesaid order dated 8 December, 2023,
which came to be rejected by a detailed order dated 14 December, 2023 passed
by this Court.
8. Mr. Mishra, learned counsel for the respondent has opposed this petition
on the ground that the petitioner has waived a show cause notice and in fact an
order is recently passed whereby the goods have been confiscated. It is stated
to be dated 18 December, 2023. However, the petitioner has not been served
with a copy of the order. It is stated that an email was forwarded to the
petitioner enclosing such order as also by a speed post. However, such order is
not placed before us. Such order, in our opinion, however, would not make
any difference considering the view we are required to take on the proceedings.
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9. Be so it, in our opinion, there is much substance in the contentions as
urged on behalf of the petitioner. We have seen from the documents as
annexed in the petition, which are Bill of Entry and Invoices, that the price at
which the petitioner has imported the apples in qestion is at Rs.50/- and the
embargo to any clearance of such import under Notification No. 5/2023,
which would operate if the value is below Rs.50/- per kg. Thus, it would not
be correct on the part of the revenue only on the ground of the notification in
regard to fixing of the import price, the present consignment of the apples, as
imported by the petitioner should be labelled as prohibited goods.
10. We may also observe that not only this Court in the case of M/s.
Indusina Exim LLP vs. The Commissioner of Customs (Import) but also the
Kerala High Court as well as the Madras High Court have taken a consistent
view in regard to permitting clearance of the apples on the ground that
Notification No. 5/2023 has been stayed. We have not been pointed out any
judgment which takes a contrary view in regard to the notification in question.
We have also not been pointed out that the stay of the said Notification as
ordered by the Kerala High Court has stood vacated. The order passed by the
Kerala High Court on the said notification, would apply in respect of imports
of apples by traders throughout the country considering the settled principles
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of law as laid down by the Supreme Court in M/s. Kusum Ingots and Alloys
Ltd. vs. Union of India & Anr.3
11. In the aforesaid circumstances, considering that the imports are
perishable in nature, we are inclined to allow this petition in terms of the
following order:
ORDER
(i) We direct that the imports of the petitioner subject matter
of Bill of Entry No. 8854586 dated 20 November, 2023, be
released on the petitioner furnishing a bond.
(ii) An appropriate assessment of the bill of entry be
accordingly undertaken in accordance with law within a period
of three days from today.
12. Disposed of in the above terms. No costs.
(JITENDRA JAIN, J.) (G. S. KULKARNI , J.)
3 (2004) 6 SCC 254
Signed by: Vidya S. Amin 21 December, 2023
Designation: PS To Honourable Judge
Date: 22/12/2023 13:23:51
