Order Date – 15 March 2023

Parties: M/s. Shiva Trading Co. Vs The Commissioner of Customs, Chennai-II

Facts –

• The Appellant, M/s. Shiva Trading Co., placed orders for import of “Polyester Coated Fabric
• The DRI redetermined the value of the goods and the goods were seized as per seizure memo dated 19.10.2022 alleging that there was gross mis-declaration of description and quantity, and undervaluation of goods. The appellant paid the duty liability pending decision with regard to provisional release of the goods. The goods were permitted to be warehoused as per Section 14 of the Customs Act, 1962.
• The Appellant was informed by the supplier that due to mistake, wrong consignments were loaded from their factory, thus the appellant intended to re-export the same to the supplier. The request for provisional release of the goods filed by the appellant was rejected observing that any request for re-export can be considered only at the time of adjudication and after the investigation is completed by DRI.

Issue –

• Whether the appellant can re-export its goods before completing the investigation by DRI?

Order –

• The Tribunal held that the Hon’ble jurisdictional High Court in the case of Kausalya Impex has held that when the goods are freely importable, refusing the request to re-export is not legal or proper. It was observed that the goods in the present case are freely importable and not prohibited goods.
• The appellant has undertaken not to contest the classification, description or quantity of the goods. The appellant has also made payment of Rs.50 lakhs. After appreciating these facts and following the ratio laid in the above decisions, the Tribunal held that refusal to provisionally release the goods for the purpose of re-export only is not justified.
• The adjudicating authority is directed to consider the request of the importer-appellant for provisional release of the goods for re-export and the appeal is allowed.