Madras High Court
M/S.K.K.International vs The Commissioner Of Customs on 10 August, 2022
W.P.(MD)No.17157 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 10.08.2022
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
W.P.(MD)No.17157 of 2022
and
W.M.P.(MD)No.12519 of 2022
M/s.K.K.International
Rep. by its Proprietor Mr.Surendra Singh,
Shop No.09, Ravi Avenue,
Shakthi Nagar, Mundra,
Kachchh,
Gujarat – 370 421. ... Petitioner
versus
1. The Commissioner of Customs,
Custom House,
New Harbour Estate,
Tuticorin – 628 004.
2. The Joint/Additional Commissioner
of Customs (Imports),
Custom House,
New Harbour Estate,
Tuticorin – 628 004.
1/12
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W.P.(MD)No.17157 of 2022
3. The Deputy Director,
Directorate of Revenue Intelligence,
No.22/14, Celin Garden, Roche Colony,
South Beach Road,
Tuticorin – 628 001. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India,
praying for the issuance of Writ of Mandamus, to direct the
respondents herein to release the goods viz., 386 bags viz. 27.02 MTs.,
of Betel Nut product known as Supari (unflavoured Supari) of
Myanmar Origin Unflavoured Supari imported from the Republic of
the Union of Myanmar imported vide Bill of Entry No.7636317, dated
24.02.2022, classifiable under CTH 21069030 and which was also
assessed and totally valued at USD 40530/- (CNF) for 27.02 MTs., and
further direct the respondents to issue Waiver Certificate for Detention
and Demurrage Charges under Regulation of Handling of Cargo in
Customs Area Regulations, 2009.
For Petitioner : Mr.A.K.Jayaraj
For R1 and R2 : Mr.R.Aravindan
Standing Counsel
For R3 : Mr.K.Prabhu
Junior Standing Counsel for Customs
2/12
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W.P.(MD)No.17157 of 2022
ORDER
This writ petition is filed for a mandamus, directing the
respondents herein to release the goods, viz. 27.02 MTs., of Betel Nut
product known as Supari (unflavoured Supari) imported from the
Republic of the Union of Myanmar vide Bill of Entry No.7636317,
dated 24.02.2022 and further, direct the respondents to issue Waiver
Certificate for Detention and Demurrage Charges under Regulation of
Handling of Cargo in Customs Area Regulations, 2009.
2. The learned counsel appearing for the petitioner submits that
the petitioner was registered in the trade of import of Betel Nuts and
they have been allotted with Import-Export Code issued by the office
of JDGFT. The petitioner has also registered under GST and also
assessed to Income Tax. The petitioner has also registered with Food
Safety & Standards Authority of India.
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W.P.(MD)No.17157 of 2022
3. The learned counsel appearing for the petitioner further
submits that they have imported 27.02 MTs., 386 bags of Betel Nut
product known as Supari (Unflavoured Supari) from Myanmar vide
Invoice No.RT/013/2022, dated 28.01.2022 from M/s.Royal Tharcho
International Co. Ltd., Myanmar. The petitioner had declared the value
of the above goods at USD 1,500.00 per MT and totally USD 40530/-
(CNF) for 27.02 MTs. The petitioner had also filed Bill of Entry No.
7636317, dated 24.02.2022 for clearance of the above goods through
Tuticorin Port. They had declared that the above goods are classifiable
under 2106 9030. The goods are from Myanmar Origin.
4. The learned counsel for the petitioner further submits that they
had submitted all reliable and necessary documents, such as
Commercial Invoice, Packing List, Bill of Lading, Certificate of
Origin, Combined Declaration and Certificate issued in Myanmar
under Duty Free Tariff Preference Scheme by India for Least
Developed Countries, Fumigation Certificate and Phytosanitary
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W.P.(MD)No.17157 of 2022
Certificate issued by the Republic of the Union of Myanmar,
Department of Agriculture to the Customs.
5. The learned counsel for the petitioner further submits that they
had filed Bill of Entry for Home Consumption and sought for clearance
of the goods. They also claim the release of goods under CTH 2106
9030 at NIL Rate of Duty and on payment of IGST at 18% . They had
also enclosed the Insurance Certificate and also Certificate of Origin
issued by the Republic of the Union of Myanmar, Federation of
Chambers of Commerce and Industry (UMFCCI), confirming that the
goods are of Myanmar Origin and also Least Developed Countries
Certificate and also enclosed Phytosanitary Certificate issued by
Ministry of Agriculture and Irrigation, Government of the Republic of
the Union of Myanmar. Thereafter, the petitioner requested the
respondents herein to pass orders for clearance of the imported goods
and the respondents failed to do so and withheld the goods without
there being any basis.
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W.P.(MD)No.17157 of 2022
6. The learned counsel appearing for the petitioner further
submits that after filing Bill of Entry, assessment was done on
26.02.2022 and goods were examined on 02.03.2022. Thereafter, the
samples were taken from the containers and sent to FSSAI for giving
report. The FSSAI report confirmed that the goods imported were fit
for human consumption and issued No Objection for release of the
goods. The samples were also sent for testing to the Customs House
Laboratory.
7. The learned counsel for the petitioner further submits that the
goods were examined thoroughly by SIIB on 25.05.2022, however, the
goods were detained under Section 110 of the Customs Act. According
to the learned counsel for the petitioner, the FSSAI report confirmed
that the goods imported are fit for human consumption and even
thereafter, the further detention of the goods is improper.
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W.P.(MD)No.17157 of 2022
8. The learned counsel for the petitioner submits that the Betel
Nut would fall under Customs Tariff Heading 2106 and Sub-Heading
21069030. He further submits that in identical situations, the goods
have been released in all other major ports and ICDs, namely,
Bangalore, Mundra, Nhavaseva and other places. However, the
petitioner's goods alone were not released from 24.02.2022, which had
caused great loss not only to the petitioner to pay demurrage charge but
also to other sources from whom he had received money for trade and
the interest rate is also mounting.
9. The learned counsel appearing for the petitioner further
submits that if the Customs Authority felt that the goods have to be
detained under Section 110-A of the Customs Act, it could have been
given to the petitioner allowing them to clear the goods on payment of
such security. In a similar case also, this Court in W.P.(MD)No.13644
of 2022 on 07.07.2022 has also passed an order directing the
Commissioner of Customs (Imports) to release the cargo provisionally
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W.P.(MD)No.17157 of 2022
subject to furnishing of PD bond for full value of the goods and
furnishing of bank guarantee at 50% of the differential duty
considering Duty Free Tariff Preference Scheme for Least Developed
Countries (LDC) benefit. He also requests this Court to dispose of this
writ petition on the above terms.
10. Mr.K.Prabhu, learned Junior Standing Counsel for the
respondents filed a counter affidavit and also agreed for the same.
11. In a similar case, this Court, in W.P.(MD)No.13644 of 2022,
on 07.07.2022, has passed the following order:
“18. Thus, on considering the submissions made
by the learned counsels and on perusing all the materials,
following plethora judgments referred, it is the consistent
view of this Court that in case of provisional assessment,
provisional release is permissible, in fine the direction
given in the aforesaid batch of Writ Petitions is extended
to the present matter as well. Hence, this Court permits
the petitioner to make an application for provisional
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W.P.(MD)No.17157 of 2022
release under Section 110-A, on such application, when
received, shall be disposed of by the Adjudicating
Authority, after hearing the petitioner and simultaneous
with a prima facie determination of the classification of
the commodity, within a period of two (2) weeks from
the date of receipt of the application. The Commissioner
of Customs (Imports) is hereby directed to release the
cargo covered under Bill of Entry No.7102157, dated
17.01.2022, provisionally subject to furnishing of PD
bond for full value of the goods and furnishing of bank
guarantee at 50% of the differential duty considering,
Duty Free Tariff Preference Scheme for Least Developed
Countries (LDC) benefit. The petitioner shall furnish the
Least Developed Countries Certificate at the time of
assessment and the same shall be considered by the
Assessing Officer at the time of assessment. The
Department shall continue their adjudication process and
conclude the same without delay. The entire exercise
shall be completed within a period of three (3) weeks
from the date of receipt of a copy of this order.”
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W.P.(MD)No.17157 of 2022
12. Following the above order, the Writ Petition is disposed of
permitting the petitioner to make an application for provisional release
under Section 110-A of Customs Act and on filing such application, the
same shall be disposed of by the Adjudicating Authority, after hearing
the petitioner and simultaneous with a prima facie determination of the
classification of the commodity, within a period of two (2) weeks from
the date of receipt of the application. The Commissioner of Customs
(Imports) is hereby directed to release the cargo covered under Bill of
Entry No.7636317, dated 24.02.2022, provisionally subject to
furnishing of PD bond for full value of the goods and furnishing of
bank guarantee at 50% of the differential duty considering, Duty Free
Tariff Preference Scheme for Least Developed Countries (LDC)
benefit. The petitioner shall furnish the Least Developed Countries
Certificate at the time of assessment and the same shall be considered
by the Assessing Officer at the time of assessment. The Department
shall continue their adjudication process and conclude the same without
delay. The entire exercise shall be completed within a period of three
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W.P.(MD)No.17157 of 2022
(3) weeks from the date of receipt of a copy of this order. No costs.
Consequently, connected miscellaneous petition is closed.
10.08.2022
ogy
Index : Yes / No
Internet: Yes / No.
To
1. The Commissioner of Customs,
Custom House,
New Harbour Estate,
Tuticorin – 628 004.
2. The Joint/Additional Commissioner
of Customs (Imports),
Custom House,
New Harbour Estate,
Tuticorin – 628 004.
3. The Deputy Director,
Directorate of Revenue Intelligence,
No.22/14, Celin Garden, Roche Colony,
South Beach Road,
Tuticorin – 628 001.
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.17157 of 2022
B.PUGALENDHI, J.
ogy
W.P.(MD)No.17157 of 2022
10.08.2022
https://www.mhc.tn.gov.in/judis
