TaxTMI 
TaxTMI 
TaxTMI 
2021 (7) TMI 688
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....522/- and security deposit of Rs. 1,50,96,851/- . 3. Section 110A of the Customs Act provides that any goods seized under section 110 of the Customs Act, may, pending the order of the adjudicating authority, be released to the owner on taking a bond from him with such security and conditions as the adjudicating authority may require. 4. Section 110 of the Customs Act stipulates that if the proper officer has reason to believe that any goods are liable to confiscation, he may seize such goods. 5. In order to appreciate the contentions advanced by learned counsel for the appellant and the learned Authorized Representative of the Department, it would be necessary to state the relevant facts relating to the both the appeals. Elvance 6. Elvance claims to be engaged inter-alia in import of various types of fabrics. It entered into a contract with M/s. Dauer International Limited London for purchase of 100% Polyester Knitted Fabric at US$0.95 per kg. Elvance filed a Bill of Entry dated 26.09.2020 through its Customs Broker and sent an e-mail to shipping agencies and ICD Pithampur on 28.09.2020 with a request for First Check examination of the Bill of Entry so as to avoid any delay in....
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....ch is requires for a report from the Directorate or Revenue Intelligence. Mr Prasana Prasad was also not able to state out any statutory provision which provides for a report from Directorate of Revenue Intelligence. He has stated that it‟s a Departmental Protocol. In the consideration opinion of this court, in case there is no statutory provision for obtaining a report from Directorate of Revenue Intelligence, then there is no justification in not deciding the application submitted by the petitioner for provisional release of the goods. Otherwise also, the Directorate of Revenue Intelligence as informed by learned counsel for Directorate of Revenue Intelligence has already submitted a report to respondents No. 2 and 5. Resultantly, the respondents No. 2 and 5 are directed to decide the petitioner's application for provisional release of goods, within a period of ten days, from today, in accordance with law, on merits. Respondents shall pass a speaking order without begin influenced by the order passed by this court. With the aforesaid observation, the writ petition stands allowed alongwith other connected petition No. 1849/2020 which is arising out of the same dispute....
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....er Section 125 of the Customs Act, 1962. 10. In view of the above, the amount of bond and security deposit is worked out as under: Value of Bond - Rs. 3,81,23,274/- Amount Security deposit- Rs. 3,01,47,151/- 11. Accordingly, the subject seized goods imported under Bill of Entry No. 8913720 dated 23.09.2020 (new Bill of Entry No. 9344504 dated 27.10.2020), Bill of Entry No. 9261058 dated 21.10.2020 & Bill of Entry No. 9261178 dated 21.10.2020 Bill are of ordered to be provisionally released on execution of a Bond for the value of Rs. 3,81,23,27/- and furnishing of Security deposit of Rs. 3,01,47,151/-" 8. It is this order dated 17.12.2020 that has been assailed in the appeal filed by Elvance. Sedna 9. Sedna also entered into a contract with M/s. Dauer International Limited London, for import of 100% Polyester Knitted Fabric at US$0.95 per kg. It filed a Bill of Entry dated 23.09.2020 and the proper officer passed an order dated 23.09.2020 for examination of the goods. Sedna assessed the duty and paid the duties. While the goods were pending "out of charge order‟, the Department started search and seizure and re-examination of the goods on 28.09.2020 and 29.09.2021. ....
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....by the Customs authorities, but in the present case, the value has been enhanced to US$2.83 per kg; v) There is no justification for the Commissioner to include 100% of differential duty towards penalty under 114A of the Customs Act; vi) Value of US$2.83 per kg has been arrived at on the basis of a letter dated 17.12.2020, but as copy of the said letter was not provided to Elvance or Sedna, they could not offer any comments to dispute the amount; vii) The differential duty has been wrongly calculated without considering the benefit of the Notification dated 30.06.2018 that was available to the appellant. This will, in turn, effect the bond amount and the security deposit amount for provisional release of the goods; and viii) Penalty under section 112 and 114A of the Customs Act is not imposable and, therefore, the amount of security deposits deservers to be reduced. 13. Learned Authorized Representative of the Department, however, supported the impugned order and made the following submissions: (i) The goods imported by of Sedna and Elvance were examined and on being tested at the laboratories were found to be mis-declared in description. The report suggested that the im....
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....idelines for provisional release of the goods seized under section 110 of the Customs Act. While paragraph 2 of the said Circular provides for circumstances under which provisional release shall not be allowed, paragraphs 2.1 and 2.2 relate to execution of a bond and taking of a Bank Guarantee or Security Deposit. Paragraph 2.3 specifically provides that depending on the specific nature of the case, the competent authority may, for reasons to be recorded in writing, increase or decrease the amount of security deposit indicated in paragraph 2.2. Paragraphs 3 and 4 of the Circular remind the Authorities about the observations made by the Madras High Court and the Delhi High Court while allowing provisional release of goods. The relevant portion of the Circular is reproduced below: Circular Dated 16.08.2017 "Subject: Guidelines for provisional release of seized imported goods pending adjudication under Section 110A of the Customs Act, 1962 - reg. The following guidelines are being issued for guidance of the adjudicating authorities in order to ensure uniformity and to streamline the divergent procedures being followed for grant of provisional release of imported goods which are ....
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....ble Madras High Court and Hon‟ble Delhi High Court may be kept in mind while allowing provisional release of goods." 19. The Delhi High Court in Mala Petrochemicals drew a distinction between provisional assessment and provisional release of goods and also observed that each case has to turn on its own peculiar facts. The Madras High Court in Malabar Diamond Gallery Pvt. Ltd. vs. Additional Director General, DRI Chennai & Ors. [Writ Appeal No. 377 of 2016 decided on 28.07. 2016], observed that sufficient discretion has to given to the adjudicating authority in passing an order for provisional release of the goods. 20. It is in the light of the aforesaid principles that the factual position relating to these two appeals has to be examined. 21. What transpires from the records is that both Elvance and Sedna had executed written contracts with M/s. Dauer International Limited, London, for purchase of 100% Polyester Knitted Fabric and the price agreed upon between the parties was US$0.95 per kg. This is the price that was also mentioned in the Bills of Entries submitted by Elvance and Sedna. The goods have been seized under section 110 of the Customs Act, as according to the a....
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.... Bond 3,81,23,274/- Full value of seized goods: Rs. 3,81,23,274/- Security Deposit/Bank Guarantee 3,01,47,151/- Total differential duty calculated by department Rs. 1,07,24,903/- 20% of value of impugned goods towards redemption fine under section 125 of the Customs Act, (20% of Rs. 3,81,23,274/-) Rs. 76,24,655/- 10% of differential duty towards penalty under section 112 of the Customs Act, (10% of Rs. 1,07,24,903/-) Rs. 10,72,490/- 100% of differential duty towards penalty under section 114A of the Customs Act, (100% of Rs. 1,07,24,903/-) Rs. 1,07,24,903/- Extra amount Rs. 200/- Sedna Particulars Amount (in Rs.) Calculation of the amount Bond 1,91,07,522/- Full value of seized goods: Rs. 1,91,07,522/- Security Deposit/Bank Guarantee 1,50,96,851/- Total differential duty calculated by Department Rs. 53,69,213/- 20% of value of impugned goods towards redemption fine under section 125 of the Customs Act, (20% of Rs. 1,91,07,522/-) Rs. 38,21,504/- 10% of differential duty towards penalty under section 112 of the Customs Act, (10% of Rs. 53,69,....