The main legal point established is the provision for provisional release of goods under Section 110-A of the Customs Act pending adjudication, balancing the interests of the petitioner and the customs department.

T.S. SIVAGNANAM, J.

1. The petitioner has filed this Writ Petition for issuance of a Writ of Mandamus, to direct the respondents to permit clearance of the goods covered in Bill of Entry No. 6022232, dated 05.07.2014, which was assessed by the proper officer of customs and the duty thereon was paid by the petitioner and out of charge order was issued under Section 47 of the Customs Act.

2. The petitioner filed the said Bill of Entry for clearance of 52.78MTS of goods declared as Defective MS CR Sheet Cuttings and claimed the benefit of Notification No. 46 of 2011 Customs. Under the said Notification, the basic customs duty is NIL. Based on intelligence, the consignment was detained after Out of Charge order was given on 09.07.2014. The respondent would state that during the course of investigation, the petitioner did not submit the copy of the Asian India Free Trade Agreement (AIFTA) Certificate of Origin for any of their consignments and as per the notification, four copies of the certificate have to be furnished of which the Triplicate copy could be retained by the petitioner. The petitioner alleged that for each consignment, they have received only one original AIFTA certificate of origin, which was submitted at the time of examination and the petitioner did not receive the triplicate copy of the AIFTA certificate of origin and was not in possession of even the photostat copy of the same. The department further alleged that the import dockets of the petitioner earlier consignment also revealed that AIFTA certificates of origin were not produced in most of the dockets and therefore, the investigation is proceeding and a conclusion is yet to be reached. It is the further case of the department that the Bill of Lading submitted by the petitioner for the subject consignment, revealed that the description of the goods was Electrolytic galvanized sheets and the petitioner had declared the goods as Defective M.S.C.R., Sheet Cuttings in the Bill of Entry, dated 05.07.2014. The imported goods vide in the said Bill of Entry were examined on 20.08.2014 in the presence of the petitioner and the testing agency and samples were drawn for testing. The testing agency by their letter dated 03.09.2014 stated that the description of the goods in the said consignment was Electro Galvanized Low Carbon CR Steel Sheets. Therefore, the department alleged that the petitioner had not only mis-declared the description of the goods, but also submitted in-eligible AIFTA Certificate of Origin and they claimed benefit of Notification No. 46 of 2011 customs in an erroneous manner. Further, it is stated that as of now, the petitioner has claimed the benefit of the said notification for 44 consignments including the subject consignment and the duty foregone on the subject consignment is Rs. 2,08,358/-. On the above background, the petitioner has approached this Court by way of this Writ Petition seeking for permission to effect clearance of the goods, which have been now detained.

3. The learned counsel appearing for the petitioner after reiterating the factual averments in the affidavit filed in support of the Writ Petition submitted that the respondents ought to have taken into consideration that the goods imported are not prohibited goods and there cannot be any impediment for the respondents to proceed with the assessment and clearance of goods. Further, it is submitted that the respondents atleast should have cleared the goods on provisional basis in terms of Section 110A of the Act by following the circular issued by the Central Board of Excise and Customs in circular No. 42/01-Cus, dated 31.07.2001. Further, the learned counsel would submit that the petitioner will cooperate with the adjudication proceedings that may be initiated by the department and the goods may be permitted to be cleared and the petitioner is ready and willing to deposit the portion of the duty alleged to have been foregone on the subject consignment, which has been st