Prompt exercise of discretion by the authority, particularly in the case of perishable goods, and the spirit and intention of provisional clearance/assessment in case of classification disputes.

JUDGMENT

(Common Prayer:Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of Mandamus, directing the respondents herein to release the goods viz., 675 Bags viz., 54,000 Mts., and 1013 bags viz., 81.000 Mts., of Betel Nut Products (known as (Supari Unflavoured) Cutting of Indonesia Origin imported from The Republic of Indonesia vide Bill of Entry Nos.7667388, 7667284, dated 27.02.2022, classifiable under CTH 21069030 and totally valued at USD 81,000.00 (CIF) for 54,000 Mts and USD 121,500.00 (CIF) for 81.000 Mts and further direct the respondents to issue waiver certificate for detention and demurrage charges under Regulations of Handling of Cargo in Customs Areas Regulations 2009.)

Common Order

1. Mrs.R.Hemalatha, learned Senior Standing Counsel accepts notice for R1 to R4 and Mr.V.Sundareswaran, learned Senior Panel counsel accepts notice for R5. All learned counsel would submit that the issue that arises in these matters 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 release the goods viz., 675 Bags viz., 54,000 Mts., (W.P.No.16260 of 2022) and 1013 bags viz., 81.000 Mts., (W.P.No.16267 of 2022) of Betel Nut Products (known as (Supari Unflavoured) imported from Indonesia vide Bill of Entry Nos.7667388 (W.P.No.16260 of 2022) and 7667284 (W.P.No.16267 of 2022), both dated 27.02.2022, classifiable under CTH 21069030 and totally valued at USD 81,000.00 (CIF) for 54,000 Mts and USD 121,500.00 (CIF) for 81.000 Mts and further direct the respondents to issue waiver certificate for detention and demurrage charges under Regulations of Handling of Cargo in Customs Areas Regulations 2009.

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 WP.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. Howe