Assessee Ought Not To Have Meted Out Discriminatory Treatment Of Denying Clearance: Bombay High Court Allows Provisional Release Of Premium Cold Coffee

The Bombay High Court has held that the petitioner ought not to have been meted out such discriminatory treatment as denying clearance. The 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.

The bench of Justice G. S. Kulkarni and Justice Firdosh P. Pooniwalla has directed the department to grant provisional release of the goods to the petitioners by accepting the bank guarantee from the petitioner of Rs. 3,49,000 in respect of the first bill of entry and the bank guarantee of Rs. 2,00,000 in respect of the second bill of entry. The necessary action in that regard must be taken within 10 days. In addition to the bank guarantees, the petitioner shall furnish a bond as per the conditions as incorporated in the letter of the Assistant Commissioner of Custom dated November 15, 2023, for the full value of the goods, which is Rs. 37,34416.

The petitioner/assessee is a proprietorship regularly importing “premium cold coffee." These imports subject to the present proceedings are from Vietnam. The contents of the product are water, coffee beans, coffee extract, sugar, whole milk powder, non-dairy creamer, stabilizer, cappuccino flavor, etc. The petitioner seeks provisional release of two consignments that are subject matter of bills of entry and have assessable value.

The petitioner submitted that the goods are not released and, in fact, are now incurring demurrage, and in so far as the second bill of entry is concerned, it was stated that, as of date, the detention charges themselves have gone up to Rs. 6,00,000.

The petitioner contended that the department's action to detain the goods is wholly arbitrary and illegal, as in the past, i.e., between the period of August 26, 2022, and July 13, 2023, about seven consignments of the same products were released on provisional assessment.

The petitioner stated that the petitioner is a bona fide importer; there have been imports in the past that were subject to provisional release and/or bank guarantor at 16% or 28%, which were required to be furnished by the petitioner at the insistence of the department. On furnishing the bank guarantee, the goods were provisionally released. There is no reason whatsoever that the product is required to be differently treated in so far as the two bills of entries in questions are concerned.

The court has noted that the FSSAI has approved the goods for domestic consumption, which is also required to be accepted, which was a situation also in respect of the earlier seven consignments; hence, the new condition of a 100% bank guarantee cannot be foisted on the petitioner if there is no difference whatsoever in the goods that are the subject matter of the bills of entries.

The court held that it is in the interest of justice that the petitioners be permitted the provisional release of the two consignments.

Counsel For Petitioner: Kashish Gupta

Counsel For Respondent: Advait Sethna

Case Title: M/s. SCK International Versus Commissioner of Customs (Nhava Sheva-V)

Case No.: Writ Petition No. 247 Of 2024

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