2020 (6) TMI 72 - HC - Customs

CESTAT's Power to Direct Provisional Release & Fix Terms Upheld

Additional Director General (Adjudication) Versus M/s. Its My Name Pvt. Ltd.

The court held that the CESTAT has the power to direct provisional release and fix terms, including modifying terms set by the adjudicating authority. The ... Jurisdiction - appeal to High Court - appropriate forum - Smuggling - Provisional release of gold jewellery - section 130 of Customs Act - HELD THAT:- An appeal lies, to this Court, under Section 130 of the Act, only on “substantial questions of law”. Dealing with an identical expression, as it occurs in Section 130A of the Act, which provides for reference, to the High Court, against orders of the learned Tribunal, and was the provision in existence, prior to 1st July, 2003, when the provision of appeal was introduced. In M/S. KUSHAL FERTILISERS (P) LTD. VERSUS THE COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, MEERUT [2009 (5) TMI 13 - SUPREME COURT], the Supreme Court held that a finding, by the learned Tribunal, to the effect that, as there was no wilful misstatement or suppression of fact, the extended period for issuance of Show Cause Notice, under the proviso to Section 11A of the Central Excise Act, 1944, was purely one of fact, and did not give rise to any substantial question of law. Clearly, provisional release may be allowed, under Section 110A of the Act, of “any goods, documents or things seized”. The Court, as the interpreter of the legislation, cannot profess to greater wisdom than the legislator. Where the legislature has not thought it appropriate to limit, in any manner, the nature of goods, documents or things which may be provisionally released, under Section 110A, it is no part of the function of a court to read, into the said statutory provision, any artificial limitation, not to be found therein. It is only in exceptional situations, where there is an apparent legislative lacuna, which, if left unfilled, would result in manifest injustice, or frustrate the object of the legislation, that a Court can step in and fill the lacuna and, to that limited extent, perform a quasi-legislative function. Else, the Court must rest content with being an interpreter of existing legislation, and has to accept the legislation for what it is. An executive instruction, which runs contrary to the parent statute and is, therefore, void and unenforceable and, in view thereof, need not be challenged. It is stillborn ab initio, faultily conceived; its evisceration, by legal process, is entirely unnecessary - thus, in exercising our jurisdiction under Section 130 of the Act, to ensure that such exercise regulates within the aforesaid well-delineated boundaries. These are pure findings of fact, returned by the learned Tribunal after examining the record before it. Absent any perversity therein, this Court cannot re-appreciate the said findings, in exercise of its jurisdiction under Section 130 of the Act. Far from alleging perversity, qua these findings, the appeal, of the ADG, DRI, does not contain even a whisper of an averment, disputing or traversing the said findings. There is no submission, anywhere in the body of the appeal before us, which could even obliquely indicate that the above findings, returned by the learned Tribunal, including the finding that the bar numbers of 22 of the 25 gold bars, seized from the workshop of the respondent, were identical to the bar numbers of the gold bars imported vide Bill of Entry No. 2873828 dated 17th April, 2019, using the Advance Authorisation issued to the respondent – are incorrect in any manner. Allegations in a Show Cause Notice are merely allegations, till proved, in adjudication. Were there to be no material, whatsoever, justifying clearance of the imported goods, such allegations may, conceivably, have a part to play, in examining the request for provisional release. Where, however, as in the case of the 25400.06 grams of gold jewellery, seized at the Airport in the present case, a duly registered and assessed Bill of Entry was present, the goods were apprised and found to be identical to the goods exported for exhibition, and the Bill of Entry had been signed by the Customs Import Clerk, as well as by the importer, we cannot fault the learned Tribunal in having permitted provisional release of the gold jewellery. There is no reason to interfere with the decision of the learned Tribunal, to allow provisional release of the said 25400.06 grams of gold jewellery, covered by Bill of Entry No. 107190, dated 20th April, 2019 - the decision of the learned Tribunal is set aside, to allow provisional release of the quantity of 25299.68 grams of gold jewellery, seized at the Airport, which was not covered by any registered Bill of Entry. Appeal disposed off. Issues Involved:1. Whether the CESTAT can substitute its view for the discretion of the Adjudicating Authority under Section 110A of the Customs Act.2. Whether the appellate jurisdiction of the CESTAT against an order passed under Section 110A is restricted to examining whether such an order has been passed after duly considering the law in respect of provisional release and not passed arbitrarily.3. Whether the appellant is entitled to provisional release of the seized gold in question in view of the facts and circumstances of this case.Detailed Analysis:Issue 1: Substitution of CESTAT's View for the Adjudicating Authority's DiscretionThe court held that the power and jurisdiction of the CESTAT, hearing an appeal against an order of provisional release, is coequal with the power exercised by the adjudicating authority. The CESTAT, therefore, has the power to direct provisional release and to fix the terms thereof. The court noted that the adjudicating authority, in this case, did not fix any terms for provisional release but held that it would be premature to arrive at any conclusion about provisional release before completion of adjudication proceedings. The court found this view untenable and agreed with the CESTAT's decision to quash the order of the ADG, DRI.Issue 2: Appellate Jurisdiction of CESTATThe court clarified that the CESTAT's jurisdiction is not limited to merely examining the legality of the adjudicating authority's order but extends to passing orders for provisional release if the adjudicating authority's decision is found to be unsustainable. The court held that the CESTAT's power to confirm, modify, or annul the order of the adjudicating authority includes the authority to fix terms for provisional release.Issue 3: Entitlement to Provisional Release of Seized GoldThe court upheld the CESTAT's decision to allow provisional release of the gold, gold jewellery, and silver seized from the warehouse premises of the respondent, as well as 25400.06 grams of gold jewellery covered by a registered Bill of Entry. The court noted that the assessing officer had allowed clearance of this jewellery after satisfying himself that it was the same as that exported for exhibition. The court found no reason to interfere with the CESTAT's decision on this point.However, the court set aside the CESTAT's decision to allow provisional release of 25299.68 grams of gold jewellery, which was not covered by any registered Bill of Entry. The court held that the importation of this quantity was invalid and irregular ab initio, and the exercise of discretion by the CESTAT in allowing provisional release of this quantity was untenable in law.Terms of Provisional ReleaseThe court modified the terms of provisional release set by the CESTAT. It directed the respondent to furnish a bond for the full value of the seized goods, along with a Bank Guarantee for Rs. 10 crores, containing an auto-renewal clause. The court noted that this would sufficiently safeguard the interests of the Revenue.Conclusion1. The CESTAT has the power to direct provisional release and fix the terms thereof.2. The CESTAT's jurisdiction includes passing orders for provisional release if the adjudicating authority's decision is found unsustainable.3. The court upheld the provisional release of certain quantities of gold and set aside the provisional release of gold not covered by a registered Bill of Entry. The terms of provisional release were modified to require a bond for the full value of the goods and a Bank Guarantee for Rs. 10 crores.