(Prayer: Writ Appeal filed under Clause 15 of Letters Patent to set aside the impugned order dated 28.07.2026 passed in WP.No.21374 of 2026.)

Dr. Anita Sumanth, J.

1. This appeal is filed by the Customs Department challenging order dated 28.07.2026 passed by the Writ Court. The Writ Petition had been filed by an importer of a consignment that was claimed to be containing roasted Areca Nut splits, seeking a mandamus for assessment and clearance of the consignment. Bill of Entry had been filed on 21.01.2026 and Writ Petition had been instituted in June, 2026 owing to the fact that the goods had not been released despite there not having been any seizure memo issued by the appellants.

2. The Writ Petition has come to be disposed vide order dated 28.07.2026 directing provisional release of the goods and assessment of the consignment under Section 28 of the Customs Act, 1962 (‘Act’).

3. Mr.AR.L.Sundaresan, learned Additional Solicitor General appearing for Mr.Sai Srujan Tayi, learned Senior Standing Counsel for the appellants assails the order of the Writ Court stating that the direction for provisional release ought not to have been issued even prior to the completion of adjudication. According to him, the delay in release was attributable to the fact that the goods had been referred to testing, and had suffered an adverse test report that the goods were not fit for human consumption.

4. Alternatively, and additionally, appellant is aggrieved by the fact that the learned Judge has directed execution of the indemnity bond only for the full value of the goods which, according to him, is woefully insufficient in the facts and circumstances of the case.

5. Per contra, Mr.Hari Radhakrishnan, learned counsel for the respondent would draw attention to the second test report issued by the authority, according to which, the goods have been certified to be fit for human consumption. He would assail the first report on the ground that the sample had not been drawn in a manner contemplated under the Act and relevant Rules.

6. That apart, and importantly, both test reports confirm the position that the moisture content in the Areca nuts is less than 10% (5% in report dated 24.03.2026 and 5.89% in report dated 20.05.2026) as stipulated by the Authority for Advance Ruling (AAR), whose decision had been relied upon by the Writ Court. Mr.Hari also relies on decision dated 04.03.2025 of the Division Bench of this Court in W.A.Nos.3647 and 3648 of 2024.

7. We have heard both learned counsel and perused the materials placed before us.

8. The import in this case is under Bill of Entry dated 21.01.2026, and the consignment is stated to contain roasted Areca Nut split declared to be classifiable under CTH 2008 19 91. The goods have admittedly, not been seized. However, they have not been released till date, and we thus see legitimacy in the institution of the Writ Petition seeking directions for time bound clearance and assessment of the goods.

9. The question of provisional release hinges on Section 110 of the Act that requires the recording of reasons as to why the goods are liable for confiscation. In the absence of a seizure memo, we are none the wiser as to what such reasons might be.

10. In the counter to writ petition, the Assistant Commissioner of Customs, Chennai states that ‘considering the nature of the imported goods and the requirement to ascertain their correct classification and compliance with statutory standards, the Bill of Entry was assessed on First Check basis, and the goods were subjected to detailed examination and testing.’ We are still none the wiser, as there is no reason set out even in the counter to justify the retention of the goods. What is apparent is that the retention was only on suspicion that the goods imported may vary with the declaration filed.

11. Our attention has been drawn to the Food Safety and Standards (Import) Regulations, 2017, (‘2017 Regulations’), which, per Regulations 5 and 10 thereof, require drawal of samples by an authorised officer under the Food Safety and Standards Act, 2006 (‘FSS Act’).

12. Section 144 of the Act entitles and enables the Proper Officer under the Customs Act to take samples of imported goods in the presence of the owner for examination, testing or valuation or for any other purpose under the Act. To this extent, the powers of the customs authority are wide. However, as the proper authority to draw samples in cases of food consignments/consignments containing edibles is the authority under the FSS Act, Section 144 must be read along with the FSS Act and 2017 Regulation in such cases. Hence the inference would be that the drawal of samples in such cases must be by an authorised officer under the FSS Act, in the presence of both the Customs Officer and importer.

13. For the purpose of this Writ Appeal, we thus eschew report dated 24.03.2026 as the drawal of samples had admittedly been by a customs officer. It is perhaps for that reason that the authorities have permitted the drawal of samples a second time, this time by an authorised officer under the FSS Act, paving the way for the second report. The first report dated 24.03.2026 thus stands superseded by subsequent report dated 20.05.2006.

14. The second sample has been tested by an agency accredited by the Food Safety and Standards Authority and, in its detailed report, the agency confirms that the sample conforms to applicable standards, though the report does not specifically use the phrase ‘fit for human consumption. This is one aspect of the matter.

15. The first Bench of this Court in decision dated 04.03.2025, had occasion to deal with a challenge to the adjudication and release of a consignment containing roasted Areca nuts from Indonesia. This decision has been confirmed by the Supreme Court on 25.07.2025 in SLP (c) No.17655- 17656 of 2025. The rival submissions made before the first Bench are very similar to what we have heard now, the only difference being that in that case, adjudication was complete, whereas in the present case, the consignment is yet to be assessed.

16. Mr.Sundaresan has distinguished this decision pointing out a distinction on facts, in that that consignment had been assessed. According to him, that decision cannot be taken to be a precedent in cases such as the present, where the consignment has not undergone the test of assessment and adjudication. We do not agree.

17. We have already noted that no reasons have been set out in the counter to justify the retention of the goods from January of this year when the consignment arrived, till date. The fact that no seizure has been effected will also support the position that the retention was on mere suspicions and surmises.

18. Moreover, and prima facie, the goods fall within the parameters dealt with by the AAR in the Rulings in the cases noted by the Division Bench in order dated 04.03.2025, being Neena Enterprises (dated 01.03.2023) and Universal Impex (dated 12.05.2023). These Rulings have attained finality, the AAR indicating that the categorization of consignment as raw Areca nut, would depend upon the moisture content contained. It was only in cases where the moisture content was found to be in the range of 10 to 15% that the consignment would fall within the category of raw areca nut.

19. In the present case, the moisture content in both reports dated 24.03.2026 and 20.05.2026, is less than 6%, and going by the ruling of the AAR, the consignment would thus not be classifiable as raw Areca nut.

20. On the prima facie case made out before us, we are not inclined to intervene in the direction for provisional release leaving it open to the authority to seek personal bond in respect of differential duty, or penalty, at his discretion. Thus, the direction for provisional release is perfectly in order and the decision of the first Bench would apply to the present case as well.

21. The second aspect relates to classification of the goods. The question of classification is one to be determined in the course of adjudication, which is yet to be undertaken. In light of the discussion in the paragraphs supra, we reiterate the directions under the Writ order such that the process of adjudication and assessment commence immediately. Needless to say, the adjudicating authority is at liberty to frame the assessment in according to law, and the observations made in this order are only for the purpose of the present proceedings.

22. With this, this Writ Appeal and the connected Miscellaneous Petition are dismissed with no order as to costs.