Jethanand Rohra Vs Commissioner of Customs (CESTAT Mumbai)
CESTAT held that As the goods are lying under seizure and subsequent confiscation by the Customs Department for more than two years, for no fault of the appellant, grant of waiver of detention and demurrage charges is appropriate and direct that the proper certificate shall be issued by the concerned authority. We also direct that the goods in dispute be delivered to the appellants forthwith, within a period of two weeks from the date of receipt or service of this order.
FULL TEXT OF THE CESTAT MUMBAI ORDER
The appellant, M/s. Jaymco Polymers Pvt. Ltd. carries on business of manufacture, import, and trading of various Mixed Mineral Hydrocarbon oil, etc. The other appellant, Jethanand Rohra is the director of the appellant company.
2. The facts in brief are that the appellant in the normal course of business upon import filed 5 bills of entry during the period December, 2019 and Jan. 2020 for clearance of goods declared as “Mineral Hydrocarbon Oil” CTH 27101988/Mixed Mineral Hydrocarbon Oil – CTH 27101990, as freely importable. One of the raw materials, the appellant imports for final products is Mineral Hydrocarbon Oil, which is a solvent. The consignment /containers were put on hold for drawing samples as Revenue suspected mis-declaration. Initially, the Customs Authorities took a sample from import consignment with respect to the Bill of Entry No. 6110507 dated 17.12.2019 on Ist check basis and sent the same for testing to Dy. Chief Chemist, JNCH vide Test Memo No.1059045 dated 17.12.2019. Vide report dated 27.12.2019, it was opined as under:-
“The Sample is in the form other than light oil and preparations, Kerosene (SKO) and Diesel (HSD)”.
The appellant paid duty on 31.12.2019 as the goods were found as declared. However, the said goods were not allowed to be cleared and put on hold by the Department. Thereafter, the sample was once again drawn on 07.01.2020 and again forwarded to the Dy. CC, JNCH for retesting. The same Dy.CC, JNCH vide his test report no.18/GIIB(I) dated 21.01.2020 opined as under:-
“The above tested parameters is in the range of diesel oil.
It is other than the light oil and preparations solvent (125/240), Kerosene (SKO) and Vacuum Gas Oil”.
Thereafter, samples were drawn under Panchnama for other 4 Bills of entry and forwarded to the DYCC, JNCH for testing. As per test report, it appeared to Revenue that the goods are Superior Kerosene Oil (SKO) – CTH 27101910 with respect to the three bills of entry and High Speed Diesel (HSD) of CTH 27101930 in case of 2 bills of entries, import of which is restricted and allowed only by the State Trading Enterprises. Thus, it appeared that the import made by the appellant in absence of specific authorisation by DGFT, is prohibited and as such, the same is in contravention of FTP, violating the provisions of Section 111 (d) & (m) of the Customs Act and thus, liable to confiscation. Show cause notice dated 14.10.2020 was issued and the goods were seized. The details Bill of entry wise are as follows:-
Table- A
