Court orders withdrawal of impugned communications, directs fresh orders on provisional release under Customs Act

The court disposed of the writ petitions by agreeing to withdraw the impugned communications and issuing fresh orders regarding the provisional release sought by the petitioners under Section 110A of the Customs Act. The Additional Commissioner of Customs would pass these fresh orders within two working days, preserving the rights and contentions of both parties. The court made no order as to costs in this matter.

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Issues involved:
1. Challenge to the conditions of provisional release order.
2. Interpretation of the communication as an order.
3. Availability of alternate remedy under Section 128 of the Customs Act, 1962.
4. Withdrawal of impugned communications and fresh orders by the Adjudicating Authority.

Issue 1: Challenge to the conditions of provisional release order
The writ petitioner challenged the conditions of the provisional release order, specifically focusing on conditions 2 and (a) of 3. Condition 2 required goods to be provisionally assessed at a value determined by the Department of Revenue Intelligence (DRI) and duty to be paid on this re-determined value. Condition (a) of 3 imposed a levy of 25% of the differential duty on the goods being provisionally released. The petitioner argued that these conditions were contrary to the legal precedent set in Navshakti Industries Pvt. Ltd. v. Commr. Of Cus.ICD, TKD, New Delhi, which emphasized applying parameters codified for provisional assessment of release under Section 18 of the Customs Act in such cases.

Issue 2: Interpretation of the communication as an order
The Revenue counsel argued that the communication dated 06.12.2022, previously referred to as the impugned order, was not an order but a communication of approval of provisional release by the adjudicating authority. The communication lacked the decision or order of the adjudicating authority, raising questions about its legal standing. The counsel highlighted that the decision or order under Section 110A regarding provisional release had not been communicated to the petitioner, rendering it non-binding until properly communicated.

Issue 3: Availability of alternate remedy under Section 128 of the Customs Act, 1962
The Revenue counsel suggested that the writ petitioner had an alternate remedy through an appeal under Section 128 of the Customs Act. However, the petitioner contended that the impugned order was contrary to the Customs (Provisional Duty Assessment) Regulations, 2011, justifying interference in writ jurisdiction. The absence of communication of the decision or order of the adjudicating authority hindered the availability of the alternate remedy, as emphasized by the petitioner.

Issue 4: Withdrawal of impugned communications and fresh orders by the Adjudicating Authority
Following discussions and submissions, it was agreed that the impugned communications, both I and II, would be withdrawn. The Additional Commissioner of Customs, designated as the Adjudicating Authority, would pass fresh orders regarding the provisional release sought by the petitioners under Section 110A of the Customs Act. These orders were to be served to the petitioners within two working days, preserving all rights and contentions of both parties. The court disposed of the writ petitions accordingly, with no order as to costs.

This detailed analysis of the judgment covers the key issues involved, providing a comprehensive understanding of the legal proceedings and decisions made by the Madras High Court.

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