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2015 DIGILAW 52 (MEG)

Shamsuddin Barbhuiya v. Union of India

2015-04-14

S.R.SEN, UMA NATH SINGH

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ORDER : 1. We have heard learned counsel for the parties and perused the pleadings of the writ petition. On the last date of hearing, namely, 26-03-2015, we passed the following order: “26.03.2015 Mr NH Mazarbhuiyan, learned counsel, appears for the appellant. Mr R Deb Nath, learned CGC, represents the respondents. Mr Swapan Kr. Roy, Supdt. Of Customs present in Court is not able to explain as to how the notification issued by the Reserve Bank of India in respect of goods of foreign origin would provide a ground for applying Section 123 of the Customs Act. Thus Mr. R. Deb Nath, learned CGC prays for and is granted two weeks’ time to seek instruction and place on record notification(s) of the Board of Central Excise and Customs, if any, in this regard. List this matter on 14.04.2015. JUDGE CHIEF JUSTICE” 2. In terms thereof, though an affidavit has been filed, but no Notification as required vide the above order has been placed on record. On the contrary, vide Annexure I to the counter to rejoinder affidavit sworn by one Shri. Madhurjya Mohan Neog, Asstt. Commissioner Customs, North Eastern Region, Shillong, a plea has been taken that since the article namely, betel nut was being imported through land route from a notified land custom station, during the course of import from Union of Myanmar, the petitioner was required to pay the customs duty if it was found to be in excess of 5% ad valorem as specified in the First Schedule to the Customs Tariff Act 1975 (51 of 1975). The said Notification for ready reference is also reproduced hereunder: “GOVERNMENT OF INDIA MINISTRY OF FINANCE (DEPARTMENT OF REVENUE) NEW DELHI, THE 6TH MARCH, 1995. 15 PHALGUNA, 1916 (SAKA) NOTIFICATION NO. The said Notification for ready reference is also reproduced hereunder: “GOVERNMENT OF INDIA MINISTRY OF FINANCE (DEPARTMENT OF REVENUE) NEW DELHI, THE 6TH MARCH, 1995. 15 PHALGUNA, 1916 (SAKA) NOTIFICATION NO. 9/95-CUSTOMS G.S.R, 110(E) In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts each of the goods specified in column (2) of the Table annexed hereto when imported into India from the Union of Myanmar from so much of that portion of the duty of customs leviable thereon which is specified in the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), as is in excess of 5 percent ad valorem: Provided that the importer produces evidence to the satisfaction of the Assistant Collector of Customs that such goods have, in fact, been produced in the Union of Myanmar and are imported into India through the land route from a notified land customs station. S. No. Description of goods 1. Rice 2. Pulses and Beans 3. Chana 4. Mustard and Rape seed 5. Ground Nut 6. Fresh vegetables and Fruits 7. Garlic and Onion 8. Reed Broom 9. Sesame Seeds 10. Betel Nuts 11. Turmeric 12. Dried Ginger 13. Coriander 14. Dried Chilly (including in powder form) 15. Poppy seeds 16. Wood in the rough, Whether are not stripped of bark, timber, wood roughly squared, wood sawn or shipped lengthwise, sliced of a thickness exceeding 25 millimeters. (VINAY CHHABRA) DEPUTY SECRETARY TO THE GOVERNMENT OF INDIA” 3. Learned counsel for the petitioner submitted that without questioning the authority of law behind raising of demands of customs duty, the petitioner has already paid the duty as asked for with reference to the Notification of 1995 vide receipt dated 11-03-2014. Learned counsel also submitted that the issue of legality of demand of customs duty can be challenged on the ground that the petitioner had been issued bill of entry for home consumption and the Notification of 1995 does not require payment of duty on the articles imported for that purpose. Learned counsel for the petitioner also submitted that in terms of Section 123 of the Customs Act, if the article is not specified in the Notification, the burden would lie on the authority to justify the seizure of such articles. Learned counsel for the petitioner also submitted that in terms of Section 123 of the Customs Act, if the article is not specified in the Notification, the burden would lie on the authority to justify the seizure of such articles. It is also the contention of learned counsel for the petitioner that under Section 110 of the Customs Act, seizure can be effected only if there is reason to believe and that too, should be fully reflected in the records. He also submitted that as per definition of “imported goods” under Section 2(25) of the Customs Act any goods brought into India from a place outside India is “imported goods” but it does not include the goods which have been cleared for home consumption. In the instant case, goods were cleared for home consumption as per description given in the bill of entry. Therefore, they do not fall in the category of “imported goods” in terms of the Notification. 4. Mr. R.Deb Nath, learned CGC, at this stage, submitted that the bill of entry was not shown when the article was seized, presumably, not being available with the petitioner. Learned counsel for the petitioner, however, countered the submission of learned CGC, while arguing that though the same was put across to the authority on 23-06-2014, along with the claim petition, but it was not taken into consideration. That being so, prima facie, it appears that the customs authorities have acted without proper application of mind. We, thus find force in the averments of the writ petition : for, the petitioner has already paid customs duty in terms of 1995 Notification, even though it is not clear from the said Notification that such duties can be leviable on the goods imported for home consumption. 5. Secondly, the bill of entry on home consumption was submitted to the authority way back in 23-06-2014 along with the claim petition, but for the reasons best known to them, the same was not taken into consideration. 6. Thirdly, in terms of the last order, we required certain clarifications, but in none of the affidavits on behalf of Customs, the authorities are able to answer the queries of the Court. Instead, they have been relying only on unrelated and different types of notifications. 6. Thirdly, in terms of the last order, we required certain clarifications, but in none of the affidavits on behalf of Customs, the authorities are able to answer the queries of the Court. Instead, they have been relying only on unrelated and different types of notifications. Thus, the Customs Authorities are directed to examine the matter in accordance with law and release the goods in case the claim of the petitioner is found to be in line therewith. 7. The writ petition is allowed.