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2020 (12) TMI 329
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....s, petitioner had purchased 20575 kg. of pathogens pistachio (pistachio nut in-shell) from foreign supplier in California, United States vide bill of lading dated 05.04.2019. Upon arrival of the goods at Nhava Sheva Port, petitioner filed bill of entry No.3280852 dated 17.05.2019 declaring the goods as per import documents at Rs. 1,17,78,882.10 on which duty payable was Rs. 28,64,624.00. The goods were sent for testing whereafter no objection was granted following which import release order was passed on 03.06.2019. Prior to this, on 30.05.2019 petitioner had paid the entire customs duty. It may be mentioned that no assessment was prescribed. However, despite all clearances and payment of customs duty, respondents did not release the goods for home consumption. 5. Petitioner had also purchased from foreign supplier in Shanghai, China, 135 MTS of the good "Phthalic Anhydride Naphthalene Based". On arrival of the imported goods at Nhava Sheva Port, petitioner filed bill of entry bearing No.3375143 dated 24.05.2019 declaring the goods as per the import documents. Value of the goods was declared at Rs. 86,73,540.75 and the duty payable was Rs. 24,05,607.00. Like the previous bill of....
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....lcutta High Court by order dated 14.01.2020 issued notice and stayed all further proceedings pending before the Chief Judicial Magistrate, North 24 Parganas in connection with Complaint Case No.C-1745 of 2019. 11. Immediately thereafter, letter dated 29.01.2020 was issued to the petitioner by the office of Commissioner of Customs (General), Mumbai Zone-II, Central Intelligence Unit, Nhava Sheva calling upon the proprietor to be present in person before the Central Intelligence Unit on 19.02.2020 to undergo authentication or furnish proof of possession of aadhar number and such other documents or information to establish identity as well as residential and business addresses. 12. Aggrieved by the illegal detention of the imported goods and non-examination of the same on the ground of non-appearance of the proprietor, the present writ petition has been filed seeking the relief as indicated above. 13. Primary contention of the petitioner is that the imported goods were detained for more than six months but without issuing show-cause notice under section 124 of the Customs Act though there is no seizure of the goods under section 110 of the Customs Act. There is no provision i....
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....iers were namesake directors and the works related to the imports made by M/s. Global Suppliers were handled by one Shri. Ravindra Baweja at the behest of Shri. Gaurav Gupta, proprietor of the petitioner. This was admitted by Shri. Ravindra Baweja in his statement recorded under section 108 of the Customs Act. 15.2. It is stated that Shri. Gaurav Gupta has emerged as the key person who had masterminded the said fraudulent import of inferior quality stones and the link between the petitioner and M/s. Global Suppliers was established during the course of financial investigation. Shri. Gaurav Gupta, proprietor of the petitioner is being investigated by DRI, Kolkata Zonal Unit in connection with the import of inferior quality stones by M/s. Global Suppliers. It is the contention of respondent No.3 that M/s. Global Suppliers is the front company of Shri. Gaurav Gupta. 15.3. As per the affidavit, summons issued by DRI authorities at Kolkata to the petitioner for appearance were not complied with as the proprietor is avoiding the legal process. 15.4. During investigation, it came to the notice of DRI, Kolkata Zonal Unit that petitioner has imported two consignments which are pres....
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....f 2020 pending before the Calcutta High Court. There is no mention about the said proceeding in the affidavit of respondent No.3. 17. Ms. Anjali Manish, learned counsel for the petitioner submits that the bills of entry in respect of the two consignments of the petitioner were filed on 17.05.2019 and 24.05.2019. Despite payment of the entire excise duty and all clearances given by the authorities, the consignments have not been released till date. Respondents have not seized the goods under section 110 of the Customs Act. If it had been a case of seizure under section 110 of the Customs Act, then sub section (2) thereof would have come into play because no notice has been issued to the petitioner under section 124(a) of the Customs Act. If no such notice is issued within six months of the seizure of the goods, then the goods are required to be returned to the person from whose possession the goods were seized. This period of six months though can be extended for a further period not exceeding six months by the Principal Commissioner of Customs or by the Commissioner of Customs for reasons to be recorded in writing to be informed to the person from whom the goods were seized befo....
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....signments despite the fact that such withholding of imported goods is clearly unlawful. 20. Submissions made by learned counsel for the parties have received the due consideration of the Court. Also examined the materials on record. 21. We have carefully perused the provisions of the Customs Act but we could not come across any such provision authorizing detention of goods. However, we may mention that section 110 of the Customs Act deals with seizure of goods, documents and things. 22. Seizure of goods etc. is provided in section 110 of the Customs Act. Sub section (1) makes it clear that if the proper officer has reason to believe that any goods are liable to confiscation under the Customs Act, he may seize such goods. As per sub section (2), which is relevant, where any goods are seized under sub section (1) and no notice in respect thereof is given under section 124(a) within six months of the seizure, the goods shall be returned to the person from whose possession those goods were seized. As per the first proviso, the aforesaid period of six months can be extended for a further period not exceeding six months by the Principal Commissioner of Customs or Commissioner of....
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....of verification. This aspect was dealt with by the Punjab and Haryana High Court which will be adverted to a little later. 26. We have come across a decision by the Customs Excise and Gold (Control) Appellate Tribunal, East Regional Bench, Calcutta (briefly "the Tribunal" hereinafter) in the case of Ramnarain Bishwanath Vs. Collector of Customs, Calcutta reported in (1988) 34 ELT 202. That was also a case where the goods were detained without making seizure under section 110 of the Customs Act. Tribunal examined the Central Apprising Manual of the department which dealt with detention, seizure and storage of seized goods. The manual interpreted the words "detention" and "seizure" of goods in the context of the Customs Act. It was mentioned that in ordinary parlance, there is a distinction between 'detain' and 'seize': 'detain' means 'to keep back, withhold; especially to keep back what is due and claimed'. 'Seize' means 'to be in possession or take possession of goods in pursuance of an order; to take possession by force (The Oxford English Dictionary)'. 'Seizure' is not equivalent to 'detention' as the latter word involves the idea of keeping what has been seized. In the contex....
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....pondents was unable to point out any provision in the Customs Act that permitted detention of goods in lieu of seizure. In that context it was held that there is no provision for detention of goods in lieu of seizure. Referring to section 110(2) of the Customs Act, Delhi High Court observed that there is a definite time limit within which the department has to determine if the seized goods are to be confiscated. It was held in the facts of that case that the customs authorities cannot take shelter under the device of detention of goods in order to avoid the consequences flowing from seizure of goods. 29. Again in Shiv Shakti Trading Company Vs. Commissioner of Customs (Preventive) reported in (2016) 336 ELT 415, Delhi High Court held that the time limit under section 110(2) of the Customs Act is sacrosanct. It was held that if no show-cause notice is issued within the period of six months from the date of seizure the consequence would be immediate and unconditional release of the goods in favour of the person from whom the goods were seized which would however be without prejudice to initiation and completion of adjudication. 30. Delhi High Court in Sai Incorporation Vs. Prin....