AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2016 (6) TMI 955
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....of the Code. It is contention of the petitioners that the Respondents are not following the procedure prescribed under Section 154, 157, 167, 172 and 177 of the Code, despite absence of any provision inconsistent with the same in the Act. Several orders granting interim protection pending decision on this very issue are already placed on record and referred in the earlier Order dated 13.6.2016. Without prejudice to their contentions on this legal issue, the petitioners have joined the investigations being conducted by the DRI in respect of seizure of Cigarettes and restricted R-22 Gas, which were admittedly imported by the petitioner company by concealment in aluminium scrap and mis-declaration of material particulars in the three Bills of ....
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....e of seized goods even pending adjudication. The petitioner company relies upon the Order dated 4.8.2015 of the Customs Excise and Service Tax Appellate Tribunal in the matter of Bhargav B. Patel in Appeal No. C/381/10-Mum reported in 2015-TIOL-1951-CESTAT-Mum, which is in the context of Section 125 of the Act. In para 11 thereof, it was held that under Section 125 of the Customs Act, unless the importation or exportation of goods is expressly "prohibited", the Adjudication Authority is obliged to offer to the owner of the goods an option to pay fine in lieu of confiscation. The Tribunal referred to Asian Food Industries, 2006 (204) ELT 8 (SC), wherein the Hon'ble Apex Court inter alia observed that the meaning of word "prohibited" will....
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....tempt to import gold un-authorisedly will come under the second part of Section 125 (1) of the Act where the adjudging officer is under mandatory duty to give option to the person found guilty to pay fine in lieu of confiscation. Section 125 of the Act leaves option to the officer to grant the benefit or not so far as goods whose import is 'prohibited' but no such option is available in respect of goods which can be imported, but because of the method of importation adopted, become liable for confiscation. Hon'ble Madras High Court in T Elavarasan, 2011 (266) ELT 167 (MAD HC), was pleased to rely on the said judgment of Hon'ble Andhra Pradesh High Court and held that an option has to be given to the petitioner to pay the app....
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.... were admittedly imported by concealment. None of the two goods are expressly "prohibited" for importation. Therefore, ultimately the petitioner company who is owner as well as importer would be entitled for an option to redeem the goods even upon adjudication. In such case, Section 110A concerning provisional release would be applicable. 7. In the instant case, the stand taken on behalf of DRI was that the goods which according to their own estimate have local market value of Rs. 10 Crores would be absolutely confiscated and would have to be burnt or destroyed, and that such cases of fraud cannot be settled by the Settlement Commission. On behalf of DRI objection was raised even on territorial jurisdiction of this Court in respect of the ....
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....it just and expedient to entertain the request of the petitioner company for considering conditional provisional release of the seized Cigarettes instead of relegating the petitioner company to the respondents for deciding this issue of provisional release of seized Cigarettes which are perishable in nature. 9. The Respondents have doubted the genuineness of the invoices submitted by the petitioner company under Affidavit before this Court. 10. In the affidavit of the Commissioner of Customs, the total Customs Duty chargeable on total 900 cartons as per these three invoices is computed at Rs. 6,21,14,598/-. The petitioner company is willing to make payment of this computed differential duty on provisional basis in three installments for s....
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.... shall be released on provisional basis within 48 hours; (c) Within 10 days thereafter, the petitioner company would deposit the differential duty in respect of 300 cartons of cigarettes admittedly imported by concealment vide Bill of Entry no.4410560 dated 27.02.2016. Upon making such payment the balance seized cartons of cigarettes shall be released on provisional basis within 48 hours. (d) After release of the seized goods, the petitioner company shall affix labels containing the mandatory warnings on the packages so released on provisional basis before selling the same in market. 13. Although the petitioners have raised a substantial question of law regarding applicability of section 4(2) of the Code, which has prima facie merits. Ho....