The duty of the authorities to consider all averments made by the petitioner and provide specific directions for the consideration and issuance of the DDWC.

JUDGMENT :

(Prayer : Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, calling for the records of the 1st respondent in File No.C3-II/229/O/2017-Sea leading to issuance of Order-In-Appeal No. C.Cus.II No.346 of 2017 dated 18.04.2017 and quash the same.)

The brief facts of the case are as follows:

1. The petitioner herein had filed a self-assessed Bill of Entry No. 8621647 dated 17.03.2015 for clearance of goods declared as “BIRD SCARE DEVICE” (for agriculture use only), by classifying the goods under CTH84362900, relating to poultry-keeping machinery, poultry incubators and brooders. The respondents were of the view that the goods are classifiable under CTH93040000, which are restricted for import under the Arms Act and accordingly issued a show-cause notice dated 30.04.2015, proposing to reclassify the goods under tariff item No. 93040000. By a reply dated 30.05.2015, the petitioner had raised his objections, wherein they had also sought for issuance of a 'Demurrage cum Detention Waiver Certificate' (hereinafter referred as DDWC). Consequently, an Order-in-Original dated 19.06.2015 was passed, reclassifying the goods under CTH93040000 and ordered for confiscation of the goods, together with fine and penalty. The petitioner had filed an appeal as against the same and by an order dated 30.06.2015, the Commissioner (Appeals) had set aside the Order-in-Original dated 19.05.2015 and held that the classification under CTH93040000 was improper, since the goods will not come under the category of Arms/Fire Arms. The Department's appeal against this, before the CESTAT came to be dismissed as infructuous. At the instance of the petitioner, this Court by an order dated 02.09.2016 passed in W.P.No.34599 of 2015 had referred the goods to be examined by Forensic Department and the second respondent was directed to pass appropriate orders based on the Forensic report. Accordingly, orders came to be passed by the second respondent on 17.03.2017, holding that the goods cannot be categorised as Fire Arms as per the Forensic Report and while rejecting the self-assessment under CTH84362900, the goods were reclassified under CTH85318000. However, there was no reference to the petitioner's request for issuance of DDWC.

2. As against the order dated 17.03.2017, the petitioner herein had filed an appeal challenging the reclassification under CTH85318000 and for issuance of the DDWC. By an order dated 18.04.2017, the Appellate Authority has rejected both the petitioner's self-assessment under the CTH84362900 as well as the reclassification done by the second respondent under CTH85318000 and held that the goods fall under the classification CTH93033 which covers “Fire Arms and similar devices”. With regard to the petitioner's claim for DDWC, it was held that there was no such request made before the LAA and that, the Appellate Authority cannot entertain a prayer on which no decision or order has been passed by the lower Authority. Challenging these Order-in-Original dated 17.03.2017, as well as the Order-in-Appeal dated 18.04.2017, the present Writ Petition has been filed.

3. The learned counsel for the petitioner initially raised several grounds challenging the reclassification under CTH93033, but however, during the course of arguments, submitted that the petitioner is willing to submit the goods under the reclassification of CTH93033, as held by the Appellate Authority. As such, the issue with regard to the reclassification is thus settled.

4. Insofar as the issuance of DDWC is concerned, the learned counsel for the petitioner submitted that in their reply dated 13.05.2015 made to the show-cause notice, they had raised a specific request for issuance of DDWC in terms of Regulation (1) (l) of the Handling of Cargo in Customs Areas Regulations, 2009 and therefore, the finding of the first respondent that there was no request made before the LAA for issuance of the DDWC, is incorrect.

{Under regulation 6(1)(