Bombay High Court
Masada Fruits And Vegetables vs The Commissioner Of Customs And Ors on 22 December, 2023
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2023:BHC-AS:39155-DB
Sayyed 501-WP-16162-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.16162 OF 2023
Masada Fruits & Vegetables ..Petitioner
Vs.
The Commissioner of Customs (Import) & Ors. ..Respondents
__________
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.
DATE : 22 DECEMBER, 2023.
P.C.:
1. Not on board, taken on production board.
2. We have heard Mr. Patil, learned counsel for the petitioner and
Mr. Mishra, learned counsel for the respondents.
3. This petition under Article 226 of the Constitution of India is
filed praying for the following reliefs :
(a) Be issue Rule,
(b) This Hon'ble Court may be pleased to call for the relevant record on
the file of Respondent No.2 and may further be pleased to issue a
Writ of Mandamus or any other appropriate writ or order or
directions, directing the Respondents and more particularly to the
Respondent No.2 to grant Release of the goods covered by Exh.-A,
Bill of Entry No.9267585 dated 16.12.2023 for the home
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consumption on such terms and conditions as this Hon'ble Court
may deem fit and proper.
(c) This Hon'ble Court may direct the Respondents to Provisional
Release the goods covered by Exh.-A, Bill of Entry No.9267585
dated 16.12.2023 on reasonable bond and conditions.
(d) Pending the hearing and final disposal of the present Writ Petition,
this Hon'ble Court may direct the Respondent No.2 to Provisional
Release of the goods covered by Exh.-A, Bill of Entry No.9267585
dated 16.12.2023.
(e) Interim, Ad-interim relief may be granted as per prayer clause (d);
(f) Cost of this Petition be provided for;
(g) Pass such other order and other relief as the nature and
circumstances of the case may require.
4. Mr. Patil, learned counsel for the petitioner would submit that
the consignment of apples subject matter of the present petition is not
being cleared by the respondent customs on the ground that the same is
hit by the Notification No.5/2023. It is contended that such notification
is sought to be foisted by the department on the Petitioner when the same
is neither attracted nor applicable. He submits that in regard to similar
imports, the proceedings were considered by this Court initially in the
case of M/s. Indusina Exmi LLP vs Union of India & Anr. 1, and
subsequently in the case of Jumbo Dates vs. The Commissioner of
Customs (Import)2, wherein in this Court, considering the orders passed
by the Kerala High Court in the case of Indusina Exmi LLP vs. The
1 WP/22281/2023 dtd. 11.07.2023.
2 WP/16014/2023 dtd. 21.12.2023.
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Commissioner of Customs (Imports) & Ors. 3 as also the orders passed by
the Division Bench of Madras High Court in the case of the Additional
Commissioner of Customs vs M/s. N. C. Alexander 4 was pleased to order
provisional release of the imports of apples being not affected by
Notification No.5 of 2023.
5. As rightly pointed by Mr. Patil, we have considered similar
challenge in Jumbo Dates (supra). We note our order dated 21st
December 2023 which reads thus:
"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 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. 5, 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
3 WP/15414/2023 dtd. 8.12.2023.
4 W.A. No.2626 of 2023 dtd. 18.10.2023
5 Writ Petition No. 22281 of 2023 dated 11 July, 2023
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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.6 in which this Court, considering the order passed by Kerala High
Court, had permitted provisional release of the goods in the following
terms:
"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.
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
6 Writ Petition No. 15414 of 2023
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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 of law as laid
down by the Supreme Court in M/s. Kusum Ingots and Alloys Ltd. vs.
Union of India & Anr.7.
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."
6. In the present case, the Bill of Entry seeks to clear the imports
of apples which are imported by the petitioner at a price which is at
Rs.50/- per kg. Thus clearly the price per kilogram being Rs.50/- per kg.
which is not below the price fixed by Notification No.5 of 2023, it would
be correct for the petitioner to contend that the respondents cannot
7 (2004) 6 SCC 254
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detained the petitioner's consignment on the basis of the minimum price
as fixed by the said notification. We are accordingly of the opinion that
there is no reason as to why the petitioner ought not to be permitted to
clear the goods. We accordingly dispose of this petition by following
order :
(i) We direct that the imports of the petitioner subject matter
of Bill of Entry No.9267585 dated 16th December 2023
be not detained on the ground that this goods are
prohibited goods under Notification No.5/2023 and on
such count 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 3 days from today.
(iii) It is clarified that except for what has been observed above,
we have not examined any other issue.
7. Disposed of in the above terms. No costs.
(JITENDRA JAIN, J.) (G. S. KULKARNI, J.)
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