TaxTMI 
TaxTMI 
2020 (10) TMI 902
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....nuts & Compliance of other applicable laws (any other conditions, as prescribed by adjudicating authority)." And in respect of petitioner no. 2 as follows:- "i. Execution of Bond for the value/estimated value of the seized truck i.e. 700000.00; ii. Furnishing Bank Guarantee or Security Deposit of Rs. 70000.00; iii. Statement of the truck owner under Section 108 of the Customs Act, 1962 before provisional release of the seized truck & Compliance of other applicable laws (any other conditions, as prescribed by adjudicating authority)." The contention of the counsel for the petitioners, in brief, is that the petitioners received an order from one M/s Jagdamba Enterprises for supplying 17920 K.G. of betel nuts and the petitioner purchased 24,000 K.G. of betel nuts from one Neelkamal Saha, West Bengal by means of two tax invoices dated 14.8.2020 each for 12,000 K.G. It is also stated that said Neelkamal Saha had purchased 19,884 K.G. of betel nuts in an E-auction held by the Customs Department. It is further stated that the petitioners and the purchaser Jagdamba Enterprises both are registered under the G.S.T. Act. After purchasing the said betel nuts from the said Neelkamal Sah....
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....d goods' under Section 123 of the Act and do not fall in the category of prohibited/notified goods, the seizure order is liable to be quashed and goods were liable to be released. Counsel for the petitioners argues that Section 110 of the Customs Act confers powers on the proper Officer for seizure of goods, documents and things if the proper Officers has ''reasons to believe' that the goods are liable to confiscation under this Act. Section 110 (1) is being quoted hereinunder:- "SECTION 110. Seizure of goods, documents and things.-(1) If the proper officer has reason to believe that any goods are liable to confiscation under this Act, he may seize such goods: Provided that where it is not practicable to seize any such goods, the proper officer may serve on the owner of the goods an order that he shall not remove, part with, or otherwise deal with goods except with the previous permission of such officer." He further argues that only the goods which are liable to confiscation can be seized and Section 111 of the Customs Act provides for the goods which can be confiscated under Section 111 of the Customs Act. Section 111 of the Customs Act is quoted hereinunder....
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....ot correspond in respect of value or in any other particular] with the entry made under this Act or in the case of baggage with the declaration made under section 77 3[in respect thereof or in the case of goods under transhipment, with the declaration for transhipment referred to in the proviso to sub-section (1) of section 54]; (n) any dutiable or prohibited goods transisted with or without transhipment or attempted to be so transited in contravention of the provisions of Chapter VIII; (o) any goods exempted, subject to any condition, from duty or any prohibition in respect of the import thereof under this Act or any other law for the time being in force, in respect of which the condition is not observed unless the non-observance of the condition was sanctioned by the proper officer; [(p) any notified goods in relation to which any provisions of Chapter IVA or of any rule made under this Act for carrying out the purposes of that Chapter have been contravened.]" He thus argues that for confiscation of goods it is essential to establish that:- (i) the goods were imported into India, and; (ii) the goods should be dutiable and that the imported duty has not been paid. He f....
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....eliance on the Notification No 36/2001-Customs (NT) dated 3.8.2001as amended vide Notification No 84/2019-Customs (NT) dated 15.11.2019 issued under Section 14(2) of The Customs Act wherein the valuation of Arecanuts is notified, the contention of the counsel for the petitioner on the manner of valuation does not merit acceptance. Attacking the provisional release order dated 1.9.2020, counsel for the petitioners argues that although a discretion is vested in the Adjudicating Authority in terms of the powers conferred under Section 110-A, the discretion has to be exercised in accordance with law and in good faith and cannot be the pretence for confiscating the goods. He has further argued that the condition of furnishing bank guarantee or security deposit of Rs. 7,00,000/- for the release of the Truck seized is also bad in law. Shri Agarwal then proceeded to argue on the provisions of law to stress that the Ministry of Finance has issued specific Instruction No. 01/2017-Cus. (F. No. 591/04/2016-Cus. (AS)) dated 8.2.2017 stating that the Delhi High Court in a reasoned order has held that the Panch and statement by Panches (witness) cannot be taken to be an order passed by the prop....
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....ith the discretion of the Commissioners of Customs (Appeals) in the exercise of its appellate function. Section 151-A is being quoted hereinbelow:- "SECTION [151A. Instructions to officers of customs.--The Board may, if it considers it necessary or expedient so to do for the purpose of uniformity in the classification of goods or with respect to the levy of duty thereon, 3[or for the implementation of any other provision of this Act or of any other law for the time being in force, in so far as they relate to any prohibition, restriction or procedure for import or export of goods] issue such orders, instructions and directions to officers of customs as it may deem fit and such officers of customs and all the other persons employed in the execution of this Act shall observe and follow such orders, instructions and directions of the Board: Provided that no such orders, instructions or directions shall be issued-- (a) so as to require any such officer of customs to make a particular assessment or to dispose of a particular case in a particular manner; or (b) so as to interfere with the discretion of the 4[Commissioner of customs ((Appeals)] in the exercise of his appellate func....
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....the counter affidavit, it has been stressed that the writ petition is not maintainable in view of the judgment of this Court in the case of Creative Media Vs. State of U.P. and 2 others (Writ Tax No. 469 of 2019). Counsel for the respondents has further argued that an alternative remedy of appeal lies before the Commissioner (Appeals) against the order of provisional release and as such the writ petition is liable to be dismissed on the ground of alternative remedy. For the said proposition, the counsel for the respondents has relied upon the judgments in the case of Authorized Officer, State Bank of Tranvacore Vs. Mathew K.C. (Civil Appeal No. 1282 of 2018) and the judgment of the Supreme Court of India in the case of State of Utttar Pradesh & Others Vs. M/s Kay Pan Fragrance Pvt. Ltd in (Civil Appeal No. 8941 of 2019), 2019 (31) G.S.T.L. 385 (SC). Thus, in sum and substance, the counsel for the respondents has argued that in view of the availability of alternative remedy of appeal against the order of provisional release, the writ petition is liable to be dismissed. Counsel for the petitioners in rejoinder states that the order of provisional release is liable to be interfered ....
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....tion of principles of natural justice inasmuch as neither in the provisional release order has the contention of the petitioners being addressed nor has any oppertunity of hearing accorded before passing the provisional release order, and ; (v) the order of provisional release has been passed even contrary to terms of the circular issued and there is no independent exercise of discretion by the Adjudicating Authority while passing the provisional release order. Thus, on all the above grounds, which are all well carved out exceptions for exercise of jurisdiction under Article 226 of the Constitution, we reject the preliminary objection of the counsel for the respondents that in view of the remedy of appeal writ petition is not maintainable. Reverting to the judgments relied upon by the counsel for the respondents on the grounds of alternative remedy. The Supreme Court while deciding the matter in Authorized Officer, State Bank of Tranvacore (supra) held that writ jurisdiction should normally not be entertained without assigning any special reasons and that too without even granting opportunity to contest the maintainability of the writ petition and failure to notice the subseque....
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....on a prima facie examination, the ''Areca Nuts' loaded in the Truck and as on some of the bags inscriptions in foreign language was written as well as that the ''Areca Nuts' on being taken out from the bags appeared to be of a foreign origin. The ''Areca Nuts' were shown to the local businessman and on the basis of their experience, they said that the ''Areca Nuts' appears to be of foreign origin. Thus, on these three grounds, the action for seizure was initiated. It is on record in the form of certificates issued by the Ministry of Agriculture and Farmer Welfare as well as by ICAR to the effect that there is no mechanism available to trace the country of origin of ''Areca Nuts' and there is no laboratory test available for the same and further on the basis of examination by naked eye it cannot be conclusively determined with regard to origin of the ''Areca Nuts'. The ICAR has also opined that without there being samples available from the country of origin, it was not possible to determine the country of origin of the seized ''Areca Nuts'. That being the definite opinion of the Deparment of Agricu....