No Suspension of preferential Tariff Treatment for Areca Nut: Madras HC

N and N Traders Vs Assistant Commissioner of Customs (Group 1) (Madras High Court)

Introduction: The Madras High Court’s ruling in the case of N and N Traders Vs Assistant Commissioner of Customs (Group 1) has stirred interest among importers and legal experts alike. The decision focuses on the non-suspension of preferential tariff treatment on imported Areca nut under section 28DA of the Customs Act. This article delves into the critical aspects of the judgment to provide a comprehensive understanding of its implications.

The Core Issue: The crux of the case revolves around a Bill of Entry filed by N and N Traders for clearing an imported consignment of Areca nut. The petitioner claimed an exemption under Notification No. 26/2000-Cus, arguing for a nil duty rate. However, the petitioner was asked to furnish a Bank Guarantee and a bond, a requirement that they found disputable.

Preferential Tariff and Certificate of Origin: The petitioner had presented a Certificate of Origin from the Assistant Director of Commerce, Colombo, under the Indo-Sri Lanka Free Trade Agreement (ISFTA). This Certificate had not been revoked and was the basis for claiming a preferential tariff rate. It was argued that the goods should have been cleared based on this certificate, especially when similar imports were cleared both before and after this consignment.

Legal Provisions Involved: Section 28DA of the Customs Act allows the Proper Officer to temporarily suspend preferential tariff treatment if the importer fails to provide requisite information. The learned counsel for N and N Traders argued that no such information was asked for, thereby negating the need for a Bank Guarantee and bond.

Court’s Stance on Provisional Assessment and Security: The Court observed that the petitioner was only asked for provisional security and was free to provide any other type of security as specified. Moreover, the respondents argued that no prejudice would be caused if the petitioner provided the Bank Guarantee.

The Verdict: After considering the arguments from both sides, the Court found no evidence to show that the petitioner was called upon to furnish any additional information. It thus ruled that the provisional assessment should be carried out in line with Section 28DA of the Customs Act. The Court also directed the authorities to allow the clearance of the imported consignment of Areca nut.

Conclusion: The ruling by the Madras High Court in the N and N Traders Vs Assistant Commissioner of Customs case has significant implications for importers seeking preferential tariff treatment. It emphasizes that legal obligations, such as furnishing Bank Guarantees and bonds, should only be imposed if supported by the legislative framework. This landmark decision serves as a guideline for future assessments, ensuring fair treatment for importers who comply with legal prerequisites.

FULL TEXT OF THE JUDGMENT/ORDER OF MADRAS HIGH COURT

This Writ Petition is disposed of after dispensing with the requirement of filing of counter affidavit based on the submission of the learned counsel for the petitioner and the learned Junior Panel Counsel for the respondents.

2. It is noticed that the petitioner has filed Bill of Entry bearing No.6427619 on 15.06.2023 for clearing a consignment of arecanut. The petitioner has classified imported consignment of arecanut under heading No.08028090. The petitioner has claimed exemption under Notification No.26/2000-Cus dated 01.03.2000. The Bill of Entry has been provisionally assessed. The petitioner has been called upon to furnish a Bank Guarantee for Rs.2,45,40,003.60/- and a bond for Rs.2,33,71,432/-.

3. The specific case of the petitioner is that the imported consignment of arecanut is exempted under Notification No.26/2000-Cus dated 01.03.2000 and attracts Nil duty.

4. The petitioner has drawn attention to a copy of the Certificate of Origin given by the Assistant Director of Commerce, Colombo pursuant to Indo-Sri Lanka Free Trade Agreement (ISFTA). It is submitted that the said Certificate of Origin has not been cancelled.

5. The learned counsel for the petitioner submits that both the imports made prior to and after the imports covered by the subject Bill of Entry have been allowed to be cleared as detailed below:-

Table-1

6. The learned counsel for the petitioner further submitted that a specific dispensation has been provided under Chapter V-AA of the Customs Act, 1962, which contemplates the procedure regarding claim of preferential rate of duty. It is submitted that sub-section 4 to Section 28DA of the Customs Act empowers the Proper Officer to temporarily suspend the preferential tariff treatment if an importer fails to provide any information called for by the Proper Officer.

7. In this case, no such information has been called for from the petitioner and therefore, without suspending the preferential tariff treatment in terms of sub-section 4 to Section 28DA of the Customs Act, the petitioner cannot be called upon to furnish the Bank Guarantee for Rs.2,45,40,003.60/-. The learned counsel for the petitioner submits that the petitioner is willing to execute any other security as may be imposed by this Court.

8. The learned Junior Panel Counsel for the respondents would submit that the goods have been only provisionally ordered to be released and it is open for the petitioner to provide security that has been specified in the Bills of Entries.

9. It is submitted that no prejudice or harm will be caused to the petitioner if the petitioner furnishes security by way of Bank Guarantee as called for as the petitioner is not entitled to the benefit of Notification No.26/2000-Cus dated 01.03.2000 on the imported consignment of arecanut.

10. I have considered the arguments advanced by the learned counsel for the petitioner and the learned Junior Panel Counsel for the respondents.

11. There are no records to show that the petitioner was called for to furnish information, which the petitioner has failed to furnish. There is also no suspension of preferential tariff treatment of the imported goods in terms of Section 28DA of the Customs Act, 1962. The Court is therefore inclined to direct the respondents to re-assess the Bill of Entry dated 15.06.2023 provisionally in accordance with the procedure prescribed under Section 28DA of the Customs Act, 1962 and the rules made thereunder and thereafter allow clearance of the imported consignment of arecanut. While re-assessing the subject Bill of Entry, the respondents shall also consider the decisions taken in respect of Bills of Entry dated 20.06.2023 and 02.07.2023 as in Table-1 of this order.

12. This exercise shall be carried out by the respondents within a period of fifteen days from the date of receipt of a copy of this order.

13. This Writ Petition is disposed of with the above observations. No costs. Consequently, connected Writ Miscellaneous Petitions are closed.