Joint Commissioner Of Customs (Port), Special Investigation Branch vs. Vinod Kumar Jain And Ors.

Held

The Court held that it cannot convert itself into an executing court to enforce the order of the Commissioner of Customs, especially when that order is under challenge before the CESTAT. The Court acknowledged that the goods have been lying in the Customs area since September 2020 and a workable solution is needed. The Court modified the writ court's order, directing the appellant department to draw representative samples in the presence of the importer and send them for testing to an accredited laboratory in Kolkata, with the charges to be borne by the importer. This drawal of samples is without prejudice to the revenue's rights in its appeal before the Tribunal. Regarding detention charges, the Court directed the importer to submit a formal request for waiver of detention charges and issuance of a detention certificate within three days, which the appropriate authority must consider within ten days. Subject to the decision on this representation, the goods shall be permitted to be warehoused to facilitate sample drawal and testing. The Court requested the Tribunal to grant an early hearing to its appeal.

Facts

The Joint Commissioner of Customs (Port), Special Investigation Branch, Kolkata (appellant/revenue) filed an appeal against an order dated 29th September, 2021, passed by the Calcutta High Court in a writ petition. The writ petitioner (first respondent/importer) sought directions to destaff a container, permit warehousing of imported fabric under Section 49 of the Customs Act, 1962, draw fresh samples for retesting, and reimbursement of warehousing charges and container rent. The importer had declared the goods as 100% Polyester Knitted Fabric from China, but on examination, the department prima facie concluded it was Tufted Textile Fabric. The Commissioner of Customs, by an order dated 15th June 2021, rejected the declared classification, ordered assessment under CTH 58023000, confirmed duty of Rs. 30,52,005/-, ordered confiscation of the consignment, and imposed a redemption fine and penalty. The revenue appealed to CESTAT. The importer then filed the writ petition. The writ court directed retesting of goods, with charges borne by the importer.

Key Issues

1. Whether the importer is entitled to a detention certificate and consequential waiver of warehousing charges and container rent, in light of Regulations 10(a) of the Sea Cargo Manifest and Transhipment Regulation 2018 and Regulation 6(l) of the Handling of Cargo in Customs Area, Regulations 2009, and the decision in HLG TRADING VS. COMMISSIONER OF CUSTOMS, CHENNAI-II? Petitioner's arguments: The importer contended that since the goods were detained at the instance of the department and not permitted to be warehoused, they are entitled to a detention certificate to get charges waived, citing the aforementioned regulations and the Madras High Court judgment. The importer also sought an investigation into the alleged swapping of initial samples and waiver of detention charges. Revenue's arguments: The revenue argued that the writ court cannot act as an executing court for the Commissioner's order, which is under challenge before CESTAT. The revenue also noted that the appeal to CESTAT was filed within the limitation period.