TaxTMI 
TaxTMI 
2017 (1) TMI 1351
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....ar for export, instead, hand woven carpets. 2.3. Out of the ten (10) shipping bills, seven (7) shipping bills carried the date 06.11.2015, while the remaining three (3) were dated 07.11.2015. 2.4. The total cumulative value of the consignment, which was covered by these ten (10) shipping bills, was pegged, by the petitioner, at Rs. 3,10,30,857/-. 2.5. Against each of these shipping bills, the petitioner had claimed duty draw back, which, cumulatively, amounted to Rs. 27,12,946/-. 2.6. It appears that the respondents noted discrepancies, as indicated above, in the shipping bills and the consignment and, accordingly, detained the subject goods. 2.7. While there is no specific date of detention of the subject goods available in the record, it is the common case of parties before me that the subject goods were detained in November 2015. 3. In this connection, I may only note that the petitioner relies upon a letter dated 26.11.2015, issued to him by the respondents, whereby, he was asked to make himself available for examination. 3.1. There appears to be a slight discrepancy in the letter. While the letter is dated 26.11.2015, it adverts to the fact that the....
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....by the Deputy Commissioner of Customs (Export), vide a letter dated 20.07.2016, whereby, he, while reiterating the reasons for the seizure of the subject goods, called upon the petitioner to approach the Special Intelligence and Investigation Branch (SIIB) for further correspondence. 4. The petitioner, as it appears, filed a writ petition under Article 226 of the Constitution, seeking issuance of a direction from this Court to quash the seizure mahazar, dated 11.02.2016, issued by respondent No.3. This writ petition was numbered as : W.P.No.21797 of 2016. 4.1. During the pendency of the writ petition, on 05.08.2016, the Additional Commissioner of Customs, SIIB, Commissionerate III, Chennai, issued a show cause notice dated 05.08.2016, to the petitioner. 4.2. The aforementioned writ, however, came up for hearing before this Court on 21.09.2016. Hon'ble Mr.Justice T.S.Sivagnanam, vide order of even date, i.e., 21.09.2016, disposed of the writ petition, with the following operative direction, in the light of the fact that a show cause notice dated 05.08.2016, had already been issued to the petitioner : "..... 4. Accordingly, the challenge to the seizure mahazar i....
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....s in consonance with the provisions of Section 110(2) of the Act. (ii).That there was no duty element involved in the matter. Even, if, the case of the respondents were to be accepted, in totality, which is, that the goods were hand woven carpets and not hand knotted woolen carpets, as declared by the petitioner, all that would happen, would be that the petitioner would be entitled to duty draw back, only in the sum of Rs. 2,41,850/-, as against the sum of Rs. 27,12,946/-, that is, the claim made by the petitioner qua the shipping bills. Besides, reduction in duty draw back, if, the case made out by the respondents is upheld by the concerned adjudicatory forum, the petitioner may be liable to, perhaps, fine and penalty. In any event, none of these factors, justify the continued detention of the subject goods, and the refusal on the part of the respondents, to release the subject goods, to the petitioner. (iii).That the subject goods are neither prohibited nor banned goods. At the highest, the respondents case is that the petitioners have mis-declared the description and the value of the goods. Assuming without admitting that even, if, the said charge levelled by t....
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....ed market price of the subject goods was less than the duty draw back claimed by the petitioner, the petitioner was not entitled to even the re-determined duty draw back, i.e., the sum of Rs. 2,41,850/-. In support of this submission, learned counsel relied upon the provisions of Section 76(1)(b) of the Act. 7.5. It was the submission of the counsel for the respondent that the petitioner was made aware of the Textile Committee's report dated 07.01.2016, as during the course of his interrogation, on 25.05.2016, he was asked to explain the discrepancy. The said statement has been signed by the petitioner, and therefore, the petitioner cannot now say that he was not given a copy of the report of the Textile Committee. 7.6. It was also the submission of the counsel for the respondents that the detention of goods could not be equated with seizure. The detention of the subject goods, as in this case, was made to ascertain as to whether or not the declaration made by the petitioner was correct. It was submitted that upon samples being taken on 30.11.2015, when a mahazar of even date was drawn up, the said samples were sent for testing to the Textile Committee. It was further sub....
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....cannot conceive of the situation, where, Mr.Sheriff, would argue to the contrary. It is, perhaps, because of the reason, which is, that there is no clear legislative backing for detaining the goods, as against seizing them that nothing was shown in this behalf by Mr.Sheriff. 8.6. As a matter of fact, the CBEC, by way of administrative direction, vide its circular dated 04.01.2011, exhorts the officers to allow the provisional exportation of goods, even, when there is a mis-declaration, with regard to quantity, value and description. 8.7. The facts in the present case clearly reveal, as noticed above, that the respondents, on their own showing, had rejected the petitioner's request for provisional release of the subject goods, vide their letter dated 19.05.2016. This assertion is made by the respondents, quite clearly, in paragraph 8 of their counter-affidavit, though, the letter dated 19.05.2016, has not been filed by the respondents. It is further averred that the request for provisional release of the subject goods made by the petitioner, is declined, as the mis-declaration constituted a fraud, within the meaning of paragraph 2.2(c)(iii) of Chapter XV of the Customs Man....
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...."...... 2. Instances have come to the notice of the Board that export consignments continue to be detained and not allowed clearance on provisional basis on account of pending test reports/investigations for alleged mis-declaration in terms of quantity, value and description of the goods. In one case it was reported that the detained goods were not allowed to be exported provisionally on the ground that Board's Circular referred above provides for provisional release of only the seized goods. 3. In this regard it is observed that inordinate detention of the seized goods entered for exportation results in delays in fulfillment of export order and at times cancellation of such orders. Detention of goods also adds to congestion in ports besides resulting in payment of demurrage charges to the Custodians. Accordingly, the matter has been re-examined by the Board with the view to ameliorate the aforementioned difficulties faced by exporters and to streamline the procedure of provisional release / exportation of seized goods / goods under investigation on account of mis-declaration in terms of quantity and value etc. 4. Seizure should be resorted to only when the Cu....
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....ustoms, who will safeguard the interest of the genuine exporters as well as the revenue. ...." 10. Therefore, having regard to the facts and circumstances of the case, the provisions of the CBEC circular dated 04.01.2011 and the foregoing discussion, I am of the view that the fine distinction between "detention" and "seizure" of the goods, if any, was lost, as the respondents chose not to release the goods on terms or otherwise, despite, the petitioner's letter dated 08.06.2016, 17.06.2016, 24.02.2016 and 29.03.2016; though, I must note that in the letter dated 24.02.2016, as per the assertions made in the counter-affidavit by the respondents, the terminology used by the petitioner was, he be given permission to re-export the goods, as against seeking permission to export the goods. 10.1. Quite clearly, therefore, the continued detention of the subject goods is illegal. Therefore, the petitioner, in my opinion, should be handed over the custody of the subject goods. 11. The other question, which arises for consideration, is as to the terms, on which, the petitioner be allowed release of goods. 11.1. Even, Mr.Sheriff, during the course of the arguments, admitted that....