Additional Commissioner of Customs Vs N. C. Alexander (Madras High Court)
Conclusion: Customs department was directed to release fresh apples imported from New Zealand as the same were perishable in nature and were meant for human consumption, made the court find it appropriate to order the release of the goods, however, subject to the condition that Respondent should furnish a bank guarantee in order to safeguard the interests of the department.
Held: Alexander had imported “fresh apples” originating from New Zealand. According to the appellant, the apples imported could be broadly classified into two categories viz., (i) Cost Insurance Freight (in short, “CIF”) price above Rs.50/-per kg. (ii) CIF price below Rs.50/- per kg. As per DGFT Notification No.5 of 2023, dated 08.05.2023, when the CIF value was below Rs.50/- per kg, then, the import of “fresh apples” should be treated as “prohibited”. Based on the same, the authority passed the order dated 14.07.2023, confiscating the goods viz., fresh apples imported under Bill of Entry whose value was below Rs.50/- per kg, and assessing the same at Rs.18,61,610.02 under section 111(d) of the Customs Act, 1962. While so, the authority permitted the clearance of imported fresh apples comprised in the said Bill of Entry, with assessable value at Rs.56,437.43, on the premise that the CIF value of those apples was above Rs. 50/- per kg. Aggrieved by the above order, the respondent herein filed petition seeking issuance of writ of certiorari mandamus, to call for the records in connection with order-in-original passed by appellant authority, quash the same and to further direct the appellant to release the imported goods and to issue detention certificate for waiver of demurrage and container detention charges in terms of Regulation 6(1)(l) of the Handling of Cargo in Customs Areas Regulations, 2009. When the writ petition came up for hearing, following the earlier order of the Court and in view of the stay order against the notification no.5/2023 dated 08.05.2023 passed by the Kerala High Court as well by the Court, the Judge had granted an order of interim direction to the appellant to assess and release of the goods covered under the bill of entry as the imported goods were prone to deterioration. The court directed the appellant to release the subject goods on the furnishing of a bank guarantee to the tune of Rs. 2,25,000 towards differential duty by respondent. It was made clear that this interim arrangement would be made only to safeguard the interests of both parties, and the bank guarantee to be furnished by the respondent was kept alive till the decision was arrived at with regard to the validity of notification no. 5/2023 dated May 8, 2023.
FULL TEXT OF THE JUDGMENT/ORDER OF MADRAS HIGH COURT
This writ appeal is directed against the interim order passed by the learned Judge in WP.No.24343 of 2023 on 17.08.2023. For the sake of clarity and specificity, the relevant paragraphs of the same are extracted below:
“2.In a similar case, this Court has granted interim relief in WP(MD)Nos.5564 to 5566 of 2022. Incidentally, the vires of Notification No.5/2023 dated 08.05.2023 has been questioned before the Kerala High Court and interim stay has been granted by the Kerala High Court in WP(C)No.22281 of 2023(I). A similar order has also been passed by this court in the petitioner’s own case in WP.No.22392 of 2023 vide order dated 31.07.2023.
3.Consequently, there shall be an interim direction, directing the Office of the respondent to assess and release the goods covered by Bill of Entry No.6592170 dated 26.06.2023 as the imported good in question namely, “fresh apples” are prone to deterioration.”
2. The respondent herein had imported “fresh apples” originating from New Zealand via Bill of Entry No. 6592170, dated 26.06.2023, pursuant to the contract entered earlier, the details of which read as follows:
