There has to be a corresponding notification under Sec 11 of the Customs Act prohibiting Import or Export: Madras HC

If the Import or Export is to be prohibited under the Customs Act, 1962, there has to be a corresponding notification of the Central Government under Section 11 of the above Customs Act, 1962: Madras High Court

Issue

The petitioner has filed this writ petition for the issuance of a Writ of Mandamus to direct the Assistant Commissioner of Customs- respondent to release the Arecanuts imported from Myanmar. 

Facts

• The petitioner is a well-known importer and dealer of spices and condiments such as Black Pepper, Cassia, Star Aniseeds etc. and Arecanuts (Betelnuts) and is in the said business for over a period of more than two decades. Petitioner stated that he has a valid Import and Export Code No.0791011917 issued by the office of the JDGFT, Bangalore, attached to the Ministry of Commerce, Government of India. 
• The petitioner has filed Bill of Entries which covered the consignments 16 containers which have been imported. The Samples from these were sent for testing before the commencement of assessment. 
• The Officers from the Directorate of Revenue Intelligence from Nagpur, namely, the third and fourth respondents have intervened and have stalled the further assessment and clearance of the imported consignments covered by these three Bills of Entries. 
• Therefore, the petitioner is incurring Demurrage and Container Detention Charges for the containers to the liners as the imported consignments are not being allowed to be cleared as the assessment has not been completed by the jurisdictional “proper officers” under the jurisdiction of the second and the third respondent at the instance of the third and the fourth respondents. 

Findings

Under Section 6 of the Customs Act, 1962 the Central Government may, by notification in the Official Gazette, may entrust either conditionally or unconditionally to any officer of the Central or the State Government or a local authority any functions of the Board or any officer of Customs under the Act. 

If the Import or Export is to be prohibited under the Customs Act, 1962, there has to be a corresponding notification of the Central Government under Section 11 of the above Customs Act, 1962. The Central Government may by a Notification prohibit either absolutely or subject to such conditions (to be fulfilled before or after clearance) import of goods. 

Thus, there has to be a proper determination as to whether there is prohibition of the imported goods. This exercise can be carried only by a “Proper Officer” and cannot be usurped by the third or fourth respondents or their counter parts in Chennai. Merely because the officers of the third and the fourth respondents have powers to investigate by itself means will not mean that they can insist on a “hands off approach” by a competent officer who have been given the powers to assess Bill of Entry filed by an importer. Even if the jurisdictional officer of the DRI from Chennai i.e., the counter parts of the third and the fourth respondents felt that the import was without proper licence and that there was an attempt to import prohibited goods, it is their duty to merely inform the assessing officers namely The Additional Commissioner of Customs, The Assistant Commissioner of Customs, Superintendent of Central Excise and Customs or the appraiser of customs who are the “assessing officer’s “ to make proper assessment to safeguard the interest of the Revenue. 

Judgment

This Court held that since the imported goods are natural products and are prone to deterioration due to exposure to elements and natural causes with flux of time and humid & inclement weather condition in Chennai and are lying at Balmer Lawrie CFS, Chennai since the end of September, 2021 the 1st and the 2nd respondents and/or such other officers vested with the powers to assess the Bills of Entries are directed to exercise their powers under the Customs Act, 1962 one way or the other. The proper officer shall bring a closure to the issue one way of the other within a period 30 days thereafter after duly following the safe guards under the Customs Act,1962 and principle of natural justice. The petitioner may be given an option to re-export the imported goods if they are held to be prohibited goods to mitigate the loss of the petitioner. This observation is without prejudice to any penalty that may be imposed if the circumstances so warrant. 

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