JUDGMENT :

ANITA SUMANTH, J.

Prayer: Writ Petition filed under Article 226 of the Constitution of India, to issue Writs of Mandamus, directing the respondents herein to assess and release the goods viz. 1014 Bags, viz. 81.12 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. 7667229, dated 27.02.2022, totally valued at USD 133230/- (FOB) for 81.12 MTs.

1. Mrs. M. Sheela, learned Senior Standing Counsel accepts notice for all the respondents. Both learned counsel would submit that the issue that arises in this matter has been considered by this Court on 13.06.2022 in a batch of Writ Petitions in W.P. Nos. 11942 of 2022 etc. batch.

2. The petitioner seeks a mandamus directing the respondents to assess and release the goods viz. 1014 Bags, viz. 81.12 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. 7667229, dated 27.02.2022, totally valued at USD 133230/- (FOB) for 81.12 MTs.

3. The relevant portions of order dated 13.06.2022 read as follows:

“14. No doubt, the provisions of Section 110A provide for provisional release upon terms to be imposed by the authority. However, the provisions of Section 125, that deals with 'option to pay fine in view of confiscation' provides for two situations. In the case of confiscation of prohibited goods, the option to pay fine in lieu of confiscation is discretionary, such discretion to be exercised by the authority.

15. It is only in the case of other goods, that are not prohibited, that the Officer ‘shall’ offer to the owner or the person from whose possession the goods were seized, an option to pay a fine, in lieu of confiscation. Thus, in the case of prohibited goods, the discretion as to whether fine may be imposed in lieu of confiscation is that of the officer concerned.

16. Having said so, it is incumbent upon the authority to be prompt in exercise of such discretion, particularly in the case of perishable goods such as the commodity in question. The consignments are in the Customs Station since February 2022 and have been exposed to inclement weather and the vagaries of nature.

17. Though some of the petitioners have already made applications for provisional release under Section 110A of the Act, they wish to update their representations in view of events that have transpired in the recent past. This includes reference to an order of the Principal Commissioner, ordering provisional release under Section 110A, in circumstances that the petitioners state are identical to theirs. A copy of such order dated 07.05.2022 has been placed at page-23 of Additional set of documents dated 09.06.2022, filed in W.P. No. 12473 of 2022.

18. In the case of Unik Traders, an order-in-original had come to be passed on 28.01.2022 adverse to the petitioners classifying their consignments under Chapter-8. This order had come to be reversed by the Appellate Authority on 03.03.2022, wherein at paragraph-7, the Officer states as follows:

“7. From the above discussions, I find that the adjudicating authority has denied the re-testing of the impugned goods to avoid delay in order to comply the Hon'ble High Court of Madras direction. However in the present circumstances where the FSSAI, Mumbai test report is in contradiction to the CRCL Lab and the request made by the appellant in view of grounds of appeal cited above I find it is necessary to re-test the impugned goods in the jurisdictional FSSAI. Therefore, I remand the case to the adjudicating authority for retesting of the impugned goods in the jurisdictional FSSAI lab. Since, the principles of natural justice has not been followed, the adjudicating authority may re-examine the matter afresh and pass appropriate orders as deemed fit. As the cargo is perishable in nature and since the cargo is already provisionally