The Bombay High Court allowed the provisional release of premium cold coffee and noted that harsh and unreasonable conditions cannot be imposed by the Customs Department.
The petitioner is a proprietorship stated to be regularly importing, what is described as “premium cold coffee”. These imports subject matter of the present proceedings is from Vietnam. The contents of such product inter alia are water, Coffee Bean, Coffee Extract, Sugar, Whole Milk powder, Non-dairy Creamer, Stabilizer and Cappuccino Flavour etc. The petitioner sought the provisional release of two consignments, which are assessable value of Rs.12,36,082/-and Rs. 24,98,333/- respectively.
The case of the petitioner is that these goods are not released and in fact which are now incurring demurrage, and in so far as the second bill of entry is concerned it is stated that as on date the detention charges itself have gone up to Rs.6,00,000/-.
The counsel for the petitioner has contended that the department’s action to detain the goods is wholly arbitrary and illegal, inasmuch as, in the past i.e. between the period 26 August 2022 to 13 July 2023, about seven consignments of the same products were released on provisional assessment.
It was contended that the bank guarantee in regard to each of these consignments was furnished by the petitioner, however, till date no action whatsoever has been taken and the bank guarantee is also retained by the respondents. The contention is also that any further action on such consignment as released itself is by now time barred. Hence a prayer is made in the petition that the said bank guarantee be released to the petitioner.
The counsel for the department submitted that the action of the department granting provisional release of the goods vide communication of the Assistant Commissioner on the conditions as prescribed is appropriate and reasonable and that the goods under the two bills of entry are subject matter of investigation by SIIB and it is for such reason the conditions as imposed are required to be held to be justified. However, there is nothing on record as to why the goods are subjected to such investigation.
A Division Bench of Justices GS Kulkarni and Firdosh P Pooniwalla observed that “We may also observe that the petitioner is a proprietorship and a small importer, the pattern of imports has also been quite consistent. The goods in question are certainly edible goods which are perishable. The petitioner ought not to have been meted out such discriminatory treatment of denying clearance. Also, it is imperative that harsh and unreasonable conditions cannot be imposed and more so when there is not an iota of material on the part of the department, as placed before the Court indicating as to why a different yardstick would be required to be applied to the present consignments when earlier seven consignments were released at 16% to 28% bank guarantee.”
“In so far as the other reliefs, on return of the bank guarantee are concerned the petitioner is at liberty to make a representation to the respondents for return of the bank guarantee which be made within a period of two weeks from today. If such a representation is made the same shall be considered by the designated officer on its merits and in accordance with law and communicate its decision within a period of four week from the submission on such representation” the Court directed.
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