AI Drafter 
TaxTMI 
TaxTMI 
2020 (2) TMI 1135
X X X X Extracts X X X X
X X X X Extracts X X X X
....s and the Appellant informed the officers that they had imported another eight containers of crystallized glass panels. The imports were through Mundra Port (four containers) and lCD, Tughlakabad (Port of discharge Pipavav) (four containers) and the same was yet to be cleared from the port or under process of clearance. That thereafter the officers along with the Appellant entered the godown premises situated at B-61A, Ambaji Industrial Area, Palanpur, Ahmedabad Highway Road, Abu Road, Sirohi. That DRI officers resumed the high sea sales, import purchase file, import file, sales bill file. Further, the goods imported at the Appellant factory premises were stated to be imported by bill of entry and in this regard eight bills of entry mentioned was given. That, further the aforementioned goods were detained through separate detention memo dated 09 December 2018 and the goods were handed over to the Director of the Appellant Company for safe custody. That the Appellant's Director was also issued summons dated 09 December 2018 to appear on 10 December 2018 at 10:00 AM before the DRI, Ahmedabad Zonal Unit with reference to mis-declaration / undervaluation in respect of crystallized glas....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ription as well as the value. It was further requested that since verification was pending by the DRI and Customs authorities, the clearance of the goods may be allowed under bond or bank guarantee or both, so that the goods imported by the Appellant might not suffer additional costs for storage at the ports / CFS. That, on 28 December 2018, the appellant requested Customs to issue NOC at the earliest to the Customs authorities at the port of Mundra MPSEZ and lCD, Tughlakabad, respectively to allow the Appellant to clear the goods on payment of appropriate differential duties, if any, reserving their rights to contest the same in future. That by letter dated 30 December 2018, addressed to Deputy Director, DRI, Ahmedabad Zonal Unit appellant stated that the goods detained at lCD, TKD, Delhi were dreadfully fragile and liable to be completely destroyed in shifting to warehouse. Therefore, in the interest of justice and prevention of any loss they requested to immediately release the goods on provisional assessment basis and to prevent further loss of the goods and demurrage they were ready to bear the bond and bank guarantee of whatever amount be desired from the office. Thereafter, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Appellant had allegedly done undervaluation of a goods with regard to import of crystallized glass panel. That on 10 January 2019 the Appellant was in jail and he made deposit Rs. 60 Lacs vide demand drafts with regard to the imports of crystallized glass panel already made by M/s. Shreyansh Marble Tiles Pvt. Limited. That on 12 January 2019 by seizure memo cum no objection for provisional release, the SlO, DRI, Ahmedabad Zonal Unit seized the goods which were detained by Panchnama on various dates. That SIIB vide letter dated 23.01.2019 had accorded permission of provisional release of the said goods pertaining to bill of entry No.92449 13 dated 13.12.2018, 3772283 dated 27.10.2017 and 4282641 dated 06.12.2017 on submitting bond of re-determined value of goods of Rs. 33,84,917/-, bank guarantee equal to differential duty of Rs. 2,98,917/- and additional bank guarantee of Rs. 1 Lac. 2.26 That by letter dated 28 January 2019 SIO, DRI, Ahmedabad Zonal Unit had rebutted the allegations made by the Appellant's Director on 13 January 2019. That by communication dated 13 May 2019 the Appellant's company was informed that goods imported by him pertaining to bill of entry No.7756415 date....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Kulwant Singh vs. CCE & Cus and Ors - 1981 (8) ELT 3 (Del.) and Tribunal decision of Delhi Bench in the case of Swees Gems & Jewellery & Aardhya Impex vs. CGST & CE, Jaipur-I, Final Order No. 50283-50284/2019 dated 21.02.2019. 4. Learned Authorised Representative relies on the impugned order. He pointed out that after the amendment to Section 110 of the Customs Act, 1962 the law is substantially changed. He pointed out that the said provisions, after amendment, have been examined by the Hon'ble Rajasthan High Court in their judgment in the case of CC (Preventive) Jodhpur vs. Swees Gems and Jewellery - 2019 (368) ELT 455 (Raj.). He pointed out that the decision of Ahmedabad bench in the case of M/s. Gastrade International (Order No. A/10956/2019 dated 03 June 2019) passed by relying on the decision of Delhi Bench in the case of Swees Gems & Jewellery vide Final Order No. 50283-50284/2019, has been set-aside by the Hon'ble Rajasthan High Court and therefore, no reliance can be placed on the decision of Ahmedabad Bench in the case of Gastrade International (supra). 5. We have gone through the rival submissions. We find that the primary issue is if the Commissioner of Customs can....
X X X X Extracts X X X X
X X X X Extracts X X X X
....stoms and Ors. v. Charan Das Malhotra, AIR 1972 SC 689 1983 (13) E.L.T. 1477 (S.C.) considered the interplay between Sections 110 and 124 of the Customs Act and held as follows:- "Section 124 provides that no order confiscating any goods or imposing any penalty on any person shall be made under this Chapter unless the owner of the goods or such person is given a notice in writing informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty. The Section does not lay down any period within which the notice required by it has to be given. The period laid down in Section 110(2) affects only the seizure of the goods and not the validity of the notice." 13. This view was again applied and followed in J.K. Bardolia Mills v. Dy. Collector and Ors., 1994 (5) SCC 332 = 1994 (72) E.L.T. 813 (S.C.). Thus, there is no time limit for issuing a show cause notice, under Section 124 of the Customs Act. However, in case a show cause notice is not issued, for some reason, Section 110 would operate. Section 110(2) states that goods cannot be detained for more than six months, unless a show cause notice (i.e. under Section 124) is issued; the pro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....session the goods have been seized becomes immediately entitled to the return of the goods. It is that right to the immediate restoration of the goods upon the expiry of six months from the date of seizure that is defeated by the extension of time under the proviso to Section 110(2). When we speak of the right of the person being prejudiced or placed in jeopardy we necessarily envisage some damage or injury or hardship to that right and it becomes necessary to inquire into the nature of such damage or injury or hardship for any case to be set up by such person must indicate the damage or injury or hardship apprehended by such person. In the present case, one possibility is that the person from whose possession the goods have been seized may want to establish the need for immediate possession, having regard to the nature of the goods and the critical conditions then prevailing in the market or that the goods are such as are required urgently to meet an emergency in relation to a vocational or private need, and that any delay in restoration would cause material damage or injury or hardship either by reason of some circumstance special to the person or of market conditions or....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the original period of six months. It is possible that while notice is issued before the expiry of that period, service of such notice may not be affected on the person concerned in sufficient time to enable the Collector to make the order of extension before that period expires. Service of the notice may be postponed or delayed or rendered ineffective by reason of the person sought to be served attempting to avoid service of notice or for any other reason beyond the control of the Customs authorities. In that event, it would be open to the Collector, if he finds that sufficient cause has been made out before him in that behalf to extend the time beyond the original period of six months, and thereafter, after notice has been served on the person concerned, to afford a post decisional hearing to him in order to determine whether the order of extension should be cancelled or not. Having regard to the seriousness and the magnitude of injury to the public interest in the case of the illicit importation of goods, and having regard to considerations of the damage to economic policy underlying the formulation of import and export planning, it seems necessary to reconcile the need to aff....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t is a pre-requisite for the exercise of the power of extension. The pre-amended provision was silent on this aspect. 16. There are other reasons for this Court to hold that the amendment brought about a radical change in the law. Parliament had knowledge - or is deemed to have knowledge of the existing state of law, which required notice, before extension. Therefore, the change of terminology is significant; the amendment has resulted in only two conditions, being insisted upon-primarily that the Commissioner should record his reasons, before the expiry of the period of limitation and should inform those reasons to the party concerned. 17. Besides, this Court also notices that Parliament, aware of difficulties that might be faced by importers of goods, which might be seized, also provided, through an amendment in 2006, the facility of provisional release. Section 110A, enacted for this purpose, reads as follows: "110A. Provisional release of goods, documents and things seized pending adjudication. - Any goods, documents or things seized under section 110, may, pending the order of the adjudicating authority, be released to the owner on taking a bond from....