Prion Enterprises vs Commissioner of Customs

Issue notice. Mr. Kamal Nijhawan, Sr. Standing Counsel accepts notice on behalf of respondent.

With the consent of the counsel for the parties the matter is taken up for hearing, keeping in view the nature and urgency for relief.

The petitioner claims a direction to the respondent to release a consignment of Pusa 1121 Basmati Sella Rice tendered for export by the petitioner under shipping bill Nos. 2328582 and 232583. The goods were the subject matter of show cause notices dated 26-5-2011 and 16-9-2011.

This culminated in an order-in-original whereby the Commissioner directed confiscation of goods holding that there was misdescription. The petitioner appealed to the Tribunal (CESTAT). By order dated 12-6-2012, the petitioner''s appeal was allowed. The Court observed as follows :

The counsel for the appellants submits that the criteria laid down in the Notification issued by DGFT to permit export of rice is that the length of the rice should be more than 7 mm and the length to breadth ratio should be more than 3-6 as per Notification dated 5-11-2008. It is the submission of the ld. Counsel of the appellant is that as per Notification dated 5-11-2008, the criterion of length was reduced to 6.6 mm. The rice tendered by them for export satisfied these conditions. He also submits that the goods have been lying in the port for almost 1 year and now the goods cannot be exported without further processing. So they are requesting that goods may be allowed to be taken back to town.

Ld. Counsel pointed out that similar matter was considered in appeal No. 504 of 2011 and the Tribunal had ordered vide Order No. C/A/136/12-Cus, dated 16-5-2012 that such rice was not prohibited goods and confiscation is not maintainable and the appellant in that case was allowed to take back the goods, to town.

Ld. AR appearing for the Revenue is not making any plea to distinguish the facts of the case from the case already decided. Therefore, we allow the appeal by setting aside the impugned order both in respect of confiscation and penalty and allow the appellants to take back the goods to town. Misc. Application for early hearing and the appeal are disposed of accordingly.

It is urged that despite the order setting aside the confiscation and the order-in-original, the petitioner''s goods have not been released. Writ petition adverts to two letters dated 27-6-2012 and 20-7-2012 whereby the customs authorities were approached for the release of goods. It is further submitted that in case of perishable goods there is every likelihood of loss or irreparable damage. Ld. counsel for the respondent submitted that he is not aware whether any appeal has been preferred against the order of CESTAT.

We have considered the submissions. The order of the Tribunal reveals that the confiscation directed by the Commissioner of Customs was set aside. The Commissioner had relied upon certain test reports. The CESTAT however, followed its previous order in some other case where goods were similarly confiscated and held that the confiscation of the petitioner''s goods was unsustainable. Since the Tribunal''s order was delivered on 12-6-2012, the customs authorities should have taken action upon the request of respondent and allowed it.

Having regard to the circumstance that the goods are perishable in nature and in view of the above discussion, the respondent is hereby directed to ensure that the goods which are subject matter of appeal before CESTAT in Customs Appeal No. 214/2012 (directed against the order-in-original No. CC(A)/ICD/37/2011, dated 15-2-2012 by the Commissioner of Customs, New Delhi are released at the earliest and in any event within 72 hours from today.

Writ petition is allowed in the above terms. No costs. Dasti under signature of the Court Master.