Provisional attachment safeguards require approval, written reasons and hearing before extension; defective freezes and extensions cannot stand.
Provisional attachment and debit freezes under Section 110(5) of the Customs Act require proceedings under the Act, prior approval from the competent Commissioner, and a written order based on an opinion that protection of revenue or prevention of smuggling necessitates the measure. Unapproved attachment orders and unsupported debit freezes do not satisfy these safeguards, while later written orders supported by competent approval and recorded reasons may remain effective. Extension of an attachment requires written reasons communicated before expiry and a pre-decisional hearing. A later hearing or fresh order during writ proceedings does not cure an extension issued without those requirements. Pending adjudication may continue, with fresh protective measures available only through statutory compliance.
Issues: (i) Whether the debit freezes and provisional attachment orders of bank accounts complied with the statutory conditions under Section 110(5) of the Customs Act, 1962; (ii) Whether the extension orders of provisional attachment were valid without a prior hearing and recorded reasons.
Issue (i): Whether the debit freezes and provisional attachment orders of bank accounts complied with the statutory conditions under Section 110(5) of the Customs Act, 1962.
Analysis: Section 110(5) permits provisional attachment only during proceedings under the Customs Act, upon the proper officer's opinion that attachment is necessary to protect revenue or prevent smuggling, with prior approval of the Principal Commissioner or Commissioner and by a written order. Given the coercive nature of the power, these statutory preconditions require strict compliance. The attachment orders issued in October 2025 without the Commissioner's approval, and the debit freezes for which no written order, reasons, or competent approval were shown, failed to meet those requirements. However, the subsequent written attachment orders issued after approval of the Commissioner and recording the basis of the opinion were compliant.
Conclusion: In favour of the assessee insofar as the unapproved provisional attachment orders, their consequential extensions, and the unsupported debit freezes were invalid and quashed. Against the assessee insofar as the compliant subsequent provisional attachment orders were sustained.
Issue (ii): Whether the extension orders of provisional attachment were valid without a prior hearing and recorded reasons.
Analysis: The proviso to Section 110(5) requires the competent authority to record reasons in writing for extension and communicate it before expiry of the original attachment period. The statutory scheme requires a pre-decisional hearing before extension. The extension orders were made without notice or an opportunity of hearing and did not disclose reasons. The later attempt to provide a hearing and issue a fresh order during the pendency of the writ proceedings could not cure the defect.
Conclusion: In favour of the assessee; the extension orders were invalid and set aside.
Final Conclusion: The pending adjudication proceedings remain unaffected, and the department may pursue fresh protective measures strictly in accordance with the statutory scheme.
Ratio Decidendi: A provisional attachment or its extension under Section 110(5) of the Customs Act, 1962 is valid only upon strict fulfilment of the prescribed safeguards, including competent prior approval, a written and reasoned order, and a pre-decisional hearing for extension.