TaxTMI 
TaxTMI 
2022 (3) TMI 952
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.... 2. With regard to the provisional release of the seized goods, it hasbeen ascertained that' 23.145 MTs of CRGO steel sheets covered under Bill of Entry No.2057278 dated 14.02.2019, seized under panchanama dated 09.08.2019 at M/s Ameya Logistics (CFS) Nhava Sheva [as mentioned in Para 33.1.2(vi) of SCN dated 20.08.2019] have already been disposed of by the jurisdictional Commissionerate (NS-III Commissionerate, JNCH) after issuing notices under section 48 of the Customs Act, 1962 to you. 3. As regards your request for provisional release of other seized goods, it is seen that CBEC Circular dated 09.07.2014 issued from F.No. 450/71/2014/-Cus IV read with Steel and Steel Products (Quality Control) Order 2012 dated 12.03.2012 and Steel and Steel Products (Quality Control) Second (amendment) Order 2014 dated 31.03.2014, it is observed that "import of such items shall be permitted only from manufacturers/ exporters who have obtained BIS licence for use of standard marks and the product meets the prescribed quality parameters/technical requirements of the relevant Indian Standards and also bears the standard marks". Therefore, the following statutory conditions are....
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....tandard marks. 3.3. With regard to the provisional release of seized imported goods pending adjudication, the Board has issued guidelines vide Circular No.35/2017 dated 16.08.2017, wherein in para 2 of the said Circular, it is categorically mentioned that the provisional release of the following goods shall not be allowed: (i) Goods prohibited under the Customs Act, 1962 or any otherAct for the time being in force; (ii) Goods that do not fulfill the statutory compliance requirements/obligations in terms of any Act, Rule, Regulation or any other law for the time being in force; 3.4. Further, it is observed that provisional release of such non standard seized goods will pose threat to safety in general and power industry in particular and add to the transmission loss and result in breakdown of transformers and such import of goods and their provisional release thereof would be contrary to the intention of Ministry of Steel as mentioned above and against public interest. 4. In view of the above statutory provisions and Orders of Steel Ministry and the guidelines by the Board, the request made by you for provisional release of the said seize....
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.... the following cases - (i) Goods prohibited under the Customs Act, 1962 or any other Act for the time being in force; (ii) Goods that do not fulfill the statutory compliance requirements / obligations in terms of any Act, Rule, Regulation or any other law for the time being in force; (iii) Goods specified in or notified under Section 123 of the Customs Act, 1962; (iv) Where the competent authority, for reasons to be recorded in writing believes that the provisional release may not be in the public interest. 2.1. Seized imported goods shall be released provisionally by the competent authority upon request of the owner of the seized goods, subject to executing a Bond for the full value/ estimated value of the seized goods. 2.2. Further, in addition to the Bond mentioned at Para 2.1. above, the competent authority shall take a Bank Guarantee or Security Deposit to cover the following: i. the entire amount of duty/differential duty leviable on the seized goods being provisionally released; ii. amount of fine that may be levied in lieu of confiscation under Section 125 of the Customs Act, 1962 at the time of adjudic....
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....o so then he cannot be asked to furnish a bank guarantee. The Hon'ble Court has also referred to the above mentioned case of Malabar Diamond Gallery P Ltd. v. The Addl Dir General DRI (supra) in which the Hon'ble Madras High Court has held that although the import of gold was not prohibited, if the import was in violation of the conditions attached to such import, it could amount to smuggling and that a prayer for provisional release could be refused. The Hon'ble Delhi High Court has further observed that the power under Section 110 A of the Act involves exercise of discretion and the scope of judicial review is to examine if the discretion has been rightly exercised; that treatment of all types of wrongful imports on an equal footing might result in miscarriage of justice; and that Section 110 A leaves some margin to the Customs in the exercise of their discretion subject to the recognized legal limits. 4.1. The above mentioned observations of the Hon'ble Madras High Court and Hon'ble Delhi High Court may be kept in mind while allowing provisional release of goods. 5. Where provisional release of seized imported goods is allowed, the bond refe....
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....he manner, as contended by the learned counsel for the appellant, to confer powers on the proper officer to release of the goods, pending orders of the adjudicating authority, then the Legislature would have used the word, "shall", instead of word, "may". In the case on hand, considering the material on record, the respondent-adjudicating authority, has decided not to order provisional release, pending adjudication. 90. When a claim for provisional release under Section 110A of the Customs Act, is made, in the light of the decision in Lexus Exports Pvt. Ltd's case (cited supra), exercise of such right under Section 110A is only provisional and not absolute. On the culmination of adjudication proceedings, the authority may grant an option to pay fine in lieu of confiscation under Section 125 of the Customs Act, 1962 and such expected or anticipated right, cannot give rise to a cause for issuance of any mandamus sought for, under Section 110A of the Act and on the facts and circumstances of the case, when provisional release, sought for, is denied by the authorities, by filling a counter affidavit, contending that there is a prima facie case of smuggling. 91. If Cou....
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....nce and reason". Testing the discretion exercised by the authority, on both subjective and objective satisfaction, as to why, the goods seized, cannot be released, when smuggling is alleged and on the materials on record, we are of the view that the discretion exercised by the competent authority, to deny provisional release, is in accordance with law. When there is a prima facie case of smuggling, for which, action for confiscation is taken, such proceedings taken should be allowed, to reach its logical end, and not to the stiffed, by any provisional release. 6.0 In case of Mala Petrochemicals and Polymers [2017 (353) E.L.T. 446 (Del.)], referred to in Board Circular, Hon'ble Delhi High Court has again observed as follows: "23. The power under Section 110A of the Act involves exercise of discretion. The scope of judicial review is to examine if the discretion has been rightly exercised; that it is not based on irrelevant materials and is fair and reasonable in the circumstances. It is not an Appellate power. The drawing of a distinction between seizure of imported goods as a result of undervaluation and seizure of imported goods upon misdeclaration cannot per se be sai....
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....quity are inherent in any exercise of discretion; such an exercise can never be according to the private opinion. 71.1 It is hardly of any debate that discretion has to be exercised judiciously and, for that matter, all the facts and all the relevant surrounding factors as also the implication of exercise of discretion either way have to be properly weighed and a balanced decision is required to be taken. 72. It is true that the statutory authority cannot be directed to exercise its discretion in a particular manner but, as noticed in the present case, the exercise of discretion by the Adjudicating Authority has been questioned on various grounds and the Appellate Authority has, in fact, set aside the orders-in-original whereby the Adjudicating Authority had exercised the discretion to release the goods with redemption fine and penalty. Having found that the goods in question fall in the category of 'prohibited goods' coupled with the relevant background aspects, including the reasons behind issuance of the notifications in question and the findings of this Court in Agricas (supra), the question is as to whether the exercise of discretion by the Adjudicating Autho....
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.... to the general principles for exercise of discretion, as discussed hereinbefore, a few features specific to the matters of interim relief need special mention. It is rather elementary that in the matters of grant of interim relief, satisfaction of the Court only about existence of prima facie case in favour of the suit or is not enough. The other elements i.e., balance of convenience and likelihood of irreparable injury, are not of empty formality and carry their own relevance; and while exercising its discretion in the matter of interim relief and adopting a particular course, the Court needs to weigh the risk of injustice, if ultimately the decision of main matter runs counter to the course being adopted at the time of granting or refusing the interim relief. We may usefully refer to the relevant principle stated in the decision of Chancery Division in Films Rover International Ltd. and Ors. v. Cannon Film Sales Ltd. : [1986] 3 All ER 772 as under :- "....The principal dilemma about the grant of interlocutory injunctions, whether prohibitory or mandatory, is that there is by definition a risk that the court may make the "wrong" decision, in the sense of granting an inju....