TaxTMI 
TaxTMI 
2018 (10) TMI 115
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.... Regulation (2) of the Customs (Provisional Duty assessment) Regulations, 1963 which postulates 25% of provisional duty even in cases of the present like involving Section 110A of the Act?" 3.The respondent imported two consignments, vide bills of entry dated 06.10.2017. Based on intelligence that the goods imported were mis-declared, the DRI detained the consignments. In the course of investigation, it appears that one Shri Mahaveer Kumar stated that the imported consignments were not owned by the respondent/importer and those consignments were actually imported by him in the name of the respondent and the goods were owned by Shri Rajesh Shah of M/s.Molten Crystals, Mumbai. 4.From the documents retrieved, it was stated that the transaction value of the two consignments was Rs. 1,45,44,653/- whereas, the value declared for the purpose of customs clearance was only Rs. 43,58,498/-. Accordingly, the goods were seized. 5.The respondent filed Writ Petition before this Court in W.P.No.37162 of 2017 praying for a direction to consider their request for provisional release of the seized consignments. The Writ Petition was disposed of by order dated 21.12.2017, with a direction to....
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....nt had admitted that he was not the owner of the goods but, the goods belong to one Shri Rajesh Shah and one Mr.Mahaveer Kumar was the person behind the import and without considering this vital aspect, the Tribunal ought not to have directed release of the goods with modified conditions than what was imposed by the adjudicating authority. 10.It is further submitted that the said Mr.Mahaveer Kumar did not co-operate with the investigation and only after he was caught, he had given statement stating that he had imported similar consignments through various other ports and so far as the subject consignment is concerned, he stated that he had imported the same in the name of the respondent and the proprietor of the respondent is his nephew. 11.It is submitted that the Tribunal permitted provisional clearance of the goods on furnishing of Bank Guarantee for 30% of the differential duty and considering the lack of credibility of the respondent, after finalization of the provisional assessment, the collection of differential duty, based on personal bond, is next to impossible and would result in loss of Revenue. Further, the amount of Bank Guarantee directed to be furnished is gros....
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....hermore, the Tribunal noted that there is no reason to impose such an onerous condition of providing Bank Guarantee of Rs. 1,00,00,000/-, which is more than 69% of the enhanced value. Further, it is submitted that in the absence of any material available with the Department to justify the enhancement and in the absence of any disclosure of such material, there is no question of law arising for consideration in this appeal much less a substantial question of law and therefore, the appeal is not maintainable. 16.To buttress the submission as to what would be a substantial question of law, Mr.S.Baskaran, learned counsel referred to the decision of the Hon'ble Supreme Court in the case of Santosh Hazari Vs. Purushottam Tiwari (Dead) [Appeal (Civil) No. 1117 of 2001; Dated 08.02.2001] and the decision in Steel Authority of India Ltd., Vs. Designated Authority, Directorate General of Anti-Dumping and Allied Duties [2017 (349) E.L.T. 193 (SC)]. 17.Reliance was placed on the decision of the Division Bench of the High Court of Delhi in Bhaiya Fibres Ltd. vs. Additional Director General of Revenue Intelligence [2012 (281) E.L.T. 396 (Del.)] wherein, the Court pointed out that in....
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....pancy. Subsequently, DRI had detained the consignment on the allegation of the value of the goods being mis-declared. Thus, it is clear that the description of goods has not been disputed. The quantity, which was declared in the import documents, has also not been disputed. 24.Two issues, which are now brought forth pursuant to investigation done by DRI are with regard to the mis-declaration of the value of the cargo and disputing the ownership of the Cargo. For over two months, the goods were detained, as a result of which, the respondent approached this Court by way of a Writ Petition in W.P.No.37162 of 2017 praying for a direction to the Customs Authorities to provisionally release the goods and by taking note of the directions issued by the Hon'ble Supreme Court in Commissioner vs. Navshakti Inds. Pvt. Ltd. [2011 (269) E.L.T. A146 (SC)] (supra). 25.At the time when the Writ Petition was filed, the importer has stated that they are not aware as to the reason for detention. The Department also did not give any specific instruction to their Standing Sounsel in that regard. Thus, balancing the interest of the importer as well as the Revenue, the Court directed the Customs....
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....Therefore, the Writ Court granted time for filing the statutory appeal within the time permitted under the statute. The respondent was not satisfied with the direction issued and filed an appeal against the said order in Writ Appeal No.1645 of 2018 before the Hon'ble Division Bench, the Revenue stated that the appeal papers are ready and it will be filed within two weeks and recording the said submission, the Writ appeal was disposed of by judgment dated 03.08.2018 with direction to file the appeal within such time. 27.As pointed earlier, the quantity of goods imported has not been disputed. The description of the goods has not been disputed. The dispute is with regard to the valuation. Though several contentions were raised by the learned counsel for the appellant with regard to the effect of the decision of the Hon'ble Supreme Court in the case of Commissioner vs. Navshakti Inds. Pvt. Ltd. [2011 (269) E.L.T. A146 (SC)] (supra), on the case on hand, it may not be necessary for this Court to undertake an exercise in that regard, in the light of the fact that the Department accepted the request of the respondent for grant of provisional release and passed an order to t....
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....hat investigation was yet to be completed on the date when the order dated 19.01.2018 was passed. It is true, that as on today the respondent has been issued with a show cause notice dated 06.04.2018 proposing to enhance the value of the goods among other things. 33.On a reading of the show cause notice it appears that there are several materials, which have been referred to in the show cause notice and it is for respondent to reply to the show cause notice and participate in the adjudication. Since, show cause notice has been issued to the respondent, this Court would be fully justified in considering the allegations made in the show cause notice while considering as to what would be the reasonable conditions to be imposed in the respondent's case, while ordering release. 34.With regard to the non-cooperation of the respondent with the investigation, this was brought to the notice of this Court when one of us (TSSJ) sitting single, heard W.P.No.1549 of 2018 and in the said Writ Petition, it was noted that the respondent did not co-operate with the DRI, Ahmedabad and one Senior Intelligence Officer of DRI, Ahmedabad was present in Court and directions were issued after wh....