2014 (4) TMI 99 - HC - Customs

Court declines to intervene in Commissioner's order on confiscation & penalties, directs inquiry into handling of application.

The Court declined to intervene in the Commissioner's final order of adjudication, which included confiscation and penalties, regarding the release of ... Release seized goods – four refrigerators and memory cards - It is the case of the petitioner that promptly after the earlier order was passed by the High Court, the petitioner filed an application dated 21st September 2011 in terms of the said order and requested that in exercise of the powers under Section 110A of the Customs Act, such goods be released on reasonable conditions. The case of the Department is that the said application was never received. - Held that:- w.r.t. the seized goods in question court had not passed any specific order of releasing – only provided that it would be open for the petitioner to press for application u/s 110A of the Act, which was stated to have been filed – It was provided that if no such application was filed, the authorities shall take a final decision thereon, the Commission did not flouted the Court’s order - Court only required the Commissioner to decide an application for provisional release of the goods - If such an application is already filed or if not filed, the same may be filed and that the Commissioner shall decide the same expeditiously. Receiving of assessee application u/s 110A of the Act – Whether application was actually made and inwarded - Held that:- There is some ambiguity about application dated 21st September 2011 of the petitioner having been received by the Department - Assessee showed this Court the office copy of application on which stamp is affixed received by the Inward Clerk on 13th September 2011 - This stand of assessee is not in dispute - Nevertheless, in a writ petition, it would not be possible for us to conclude in a document that the application was actually made and inwarded – This issue cannot be closed in this manner - If the application was actually made and inwarded, it is a matter of serious concern why the same did not reach the Commissioner and it is disowned in the affidavit in reply - Thus, the Commissioner is required to hold an inquiry in this respect and if found that the letter was actually received by the Department but not placed before him, to take necessary steps departmentally as found appropriate. - Decided against the assessee. Issues:Petitioner's prayer for the release of refrigerators and memory cards seized by the Department.Analysis:The petitioner approached the Court seeking the release of goods seized by the Department, which included four refrigerators and 28580 memory cards concealed in them. The Court had initially provided directions for provisional release of goods other than the refrigerators and memory cards. For these remaining items, the petitioner was advised to file an application under Section 110A of the Customs Act. The dispute arose when the Department claimed to have not received the petitioner's application for release, despite the petitioner's assertions of timely submission. Subsequent correspondence and actions by both parties further complicated the matter.The Department failed to decide on the petitioner's applications for release and instead initiated show cause notice proceedings, leading to the final order of adjudication by the Commissioner. The petitioner contested the Commissioner's decision, arguing that the Court's directions for provisional release under Section 110A were not adhered to. The petitioner's counsel emphasized the need for the Tribunal to consider interim measures to prevent the goods' value from deteriorating, especially since they were electronic goods.In response, the Department's counsel argued that the petitioner's initial application for release was not received until April 2012, after the show cause notice proceedings had commenced. The Department completed the proceedings without undue delay, leading to the final order of adjudication by the Commissioner.Upon thorough examination of the facts and legal aspects, the Court noted that the initial order did not specifically direct the provisional release of the goods in question. The Court's instructions were focused on the application under Section 110A, leaving ambiguity regarding the filing of such an application. The Court acknowledged the petitioner's claims of timely submission of the application and directed the Commissioner to conduct an inquiry to ascertain the application's handling within the Department.Given the circumstances and the progression of events, the Court declined to intervene in the Commissioner's final order of adjudication, which included confiscation and penalties. The Court emphasized the importance of the Tribunal expeditiously hearing the appeal and encouraged a swift resolution of the matter. Ultimately, the Court disposed of the petition with these observations, refraining from interfering with the Commissioner's decision at that stage.