TaxTMI 
TaxTMI 
2011 (7) TMI 381
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....Commissioner of Customs (Import) on 15 February 2011 and 7 April 2011 granting provisional release of goods seized under Section 110 of the Customs Act, 1962 subject to the following conditions : "1. Payment of differential duty of Rs. 1,32,17,036/- in full along with the interest thereon amounting to Rs. 62,41,705/- (calculated till 28-2-2011). 2. Furnishing of Bank Guarantee for 20% of the ascertained CIF value i.e. Rs. 7,30,44,625/-. 3. Furnishing of a bond for the ascertained CIF value i.e. Rs. 7,30,44,625/-. 4. Legal undertaking to produce the crane in question for inspection, whenever required till adjudication of the case, and 5. Legal undertaking not to dispose of the crane without prior intimation....
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....ubmitted that in the present case the investigations are in progress involving the import of 90 cranes by the Petitioners from October 2005 involving a duty evasion of approximately Rs. 10.82 Crores. The affidavit sets out that the investigations have thus far revealed that the Petitioners had suppressed the freight component which forms part of the CIF value for determining duty liability and there was an undervaluation in the declared price of the cranes. The case of the Respondents is that this was admitted in a statement made by the Managing Director of the Petitioner which was subsequently retracted. However, the statements of the Customs House Agent handling the clearance of cargo are to the effect that the value of the cranes has bee....
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....ween 2005 and 2010 and clearance was granted against the payment of duty Hence, it was urged that the authority ought to have only required the Petitioners to furnish a bond for the differential duty, particularly having regard to the judgment of the Delhi High Court in Navshakti Industries Pvt. Ltd. v. Commissioner of Customs, 2011 (267) E.L.T. 483 (Del.) and of a Division Bench of this Court in Vodafone Essar South Ltd. v. Union of India, 2009 (237) E.L.T. 35 (Bom.). On the other hand, Counsel appearing on behalf of the Respondents has extensively relied on the affidavit in reply which has been filed. Learned counsel submitted that in the present case the department would be issuing a notice to show cause under Section 28 of the Customs A....
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....terests of the Revenue while at the same time allowing provisional release of goods pending the decision of the adjudicating authority. 7. The submission of the Petitioners, which relies on the judgment of the Delhi High Court in Navshakti Industries that the goods should be provisionally released in the present case only against the furnishing of a bond cannot be accepted. It cannot be asserted as a universal rule that there is any entitlement on the part of an importer to seek provisional release only against a bond. The plain terms of Section 110A contemplate the taking of a bond from the importer with such security and conditions as the adjudicating authority may require. In Navshakti Industries, the Division Bench of the Delhi Hi....
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.... of universal application. Section 17 of the Act provides for assessment of duty, while Section 18 makes provisions for a provisional assessment of duty. A provisional assessment of duty is contemplated (a) where the importer or exporter is unable to make a self-assessment and makes a request in writing to the proper officer for assessment; or (b) where the proper officer deems it necessary to subject any imported or exported goods to a chemical or other test; or (c) where the importer or exporter has furnished full information or documents but the proper officer deems it fit to make a further enquiry; or (d) where necessary documents have not been produced or information has not been furnished and the proper officer deems it necessary to m....
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....t of duty. In this background, the Division Bench held that till the assessment was set aside, the Customs authorities could not have seized the goods assessed particularly when the goods were assessed in accordance with the order passed by the Commissioner (Appeals). 10. In the present case, the affidavit in reply contains a detailed disclosure of the material which is made available during the course of investigation. Undoubtedly, a notice to show cause is still to be issued to the Petitioners and an adjudication is to take place. At the same time, having regard to the material which has been disclosed during the course of the investigation, the order of the Commissioner of Customs (Import) requiring the Petitioners to furnish secur....