TaxTMI 
TaxTMI 
2022 (6) TMI 139
X X X X Extracts X X X X
X X X X Extracts X X X X
....ort documents as received from the foreign supplier such as invoices, Bill of Lading and Country of Origin Certificate, etc. were filed by the Appellant along with the aforesaid Bills of Entry under Section 46 of Customs Act, 1962 ('the Act"). The Appellant admittedly has not availed any duty benefit on the basis of the said COO or otherwise and was willing to pay duty at appropriate rate. 4. During the course of physical examination of the goods imported under the Bills of Entry, it was observed by the assessing officer that the said goods appear to be of Iran origin and not Zambia and on the basis of the said observation, Inspector Customs, ICD, Tumb under the instruction of the Respondents issued Detention Memo dated 20.01.2022 informing the Appellant not to remove, sale or part with or deal with, in any other manner without permission of competent authority of Customs, ICD Tumb. 5. Based on the above, an inquiry was initiated against the Appellant, and statements of officials were recorded under Section 108 of the Customs Act, 1962. While the investigation was ongoing, seizure memo dated 02.02.2022 was issued by the Deputy Commissioner of Customs, ICD Tumb under Section 1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and bad in law inasmuch as the appellant at the time of hearing is willing to pay the entire duty without claiming benefit under any FTA Regulation. - Once the entire duty is paid then the question of giving any further bank guarantee towards provisional release of goods is uncalled for and contrary to the law laid down on the issue. The following decisions are relied upon - Amit Enterprises Vs. Union of India [2011 (269) ELT 314 (P&H) - Om Udyog vs. Joint Commissioner of Customs [2013 (287) E.L.T 48 (P & H) - Kuber Casting (P) Ltd. Vs Union of India [2013 (297) E.L.T. 4 (P & H) - Sada Sukhi Electronics (p) Ltd. Vs. Commissioner of Customs (Seaport - Import) [2014 (304) ELT 42 (Madras)] - SRK Manufacturing versus Commissioner of Customs, Ludhiana [2022 (1) TMI 220 - CESTAT CHANDIGARH] - Aban Exim Pvt. Ltd. Vs. Commissioner of Customs [2014 (309) E.L.T. 485 (Del.)] - Umiya Enterprise vs. Asst. State Tax Officer, SGST Dept., Palakkad [2020 (35) G.S.T.L 78 (Ker.)] - Deenanath Maurya vs. Commissioner of Customs, Lucknow [2021 (378) E.L.T 626 (Tri. - All.)] - Without prejudice to the aforesaid and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....vant to the said submission. - On the issue of Country of Origin certificate, it is submitted that while the investigation is ongoing, there is no evidence so far to show that the said Country of Origin certificate is forged and/or false and therefore keeping in mind the facts of the case, the order directing furnishing of bank guarantee to extent of 15% of the value of the seized goods is incorrect moreso when the entire duty is being paid. 12. Shri. J. A. Patel, Learned Superintendent (Authorised Representative) during the hearing had submitted that the order dated 06.04.2022 which was issued after the approval of the Competent Authority is correct and proper in law considering the fact that the goods were imported from Iran as against Zambia. 13. We have carefully considered the submissions made by both the sides and perused the records. In the present case, the appellant herein had imported Cooper Cathodes under Bills of Entry annexed from Page 23 to Page 30 of the Appeal Memorandum. The details of the import is reproduced below for the ease and reference. Sr. No Bill of Entry No. & Date Description of Goods imported as per import document Weight....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hereunder the Court, Tribunal or the adjudicating authority functions, so permit. There can also be no doubt that the power of review is not an inherent power. The right to seek review of an order is neither natural nor fundamental right of an aggrieved party. Such power must be conferred by law. If there is no power of review, the order cannot be reviewed. However, a Court, having plenary power, is not affected by any statutory restrictions in reviewing its own order. In Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji, reported in (1971) 3 SCC 844, the Supreme Court, while dealing with the provisions of Saurashtra Land Reforms Act, 1951, and referring to Order 47 Rule 1 of the CPC, held that there is no inherent power of review with the adjudicating authority if it is not conferred by law. The observations read, "It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to (our) notice from which it could be gathered that the Government had power to review its own order, it is obvious that its delegate could not have reviewed its order." The position....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s upheld by this Court in T.L. Verma and M/s. Kundan Rice Mills cannot be justification to impose such conditions in each and every case. In those cases, this Court was satisfied that the importers had adopted fraudulent tactics which, prima facie, justified opinion for confiscation of goods. The said judgments cannot apply to every case of detention. Mere allegation of liability to confiscation is not enough. Circumstances and grounds justifying opinion about liability to confiscation is open to judicial scrutiny. 12. Power of detention of goods is a drastic power and exercise of such power has to be hedged by safeguards to check its abuse and limit its exercise only to situation where it is intended by law to be exercised. Existence of power and exercise of power are independent. Mere fact that there is a power to confiscate does not mean that such power could be exercised mechanically or arbitrarily. The authority exercising such power must strictly justify the same. Balance has to be maintained between the need for exercise of such power for the purpose for which the same has been conferred and adverse effects on rights of a citizen. 13. As held in Mapsa Tapes....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rticle 14. As the test propounded by Article 14 pervades Article 21 as well, the law and procedure authorizing interference with personal liberty and right of privacy must also be right and just and fair and not arbitrary, fanciful or oppressive. If the procedure prescribed does not satisfy the requirement of Article 14 it would be no procedure at all within the meaning of Article 21." 14. Reasonableness being part of fundamental right under Article 14, doctrine of proportionality can be invoked so that unequals are not treated as equals. The exercise of discretion has to be proportionate to the wrong which has led to the action. The doctrine of proportionality has been explained in Om Kumar v. Union of India, AIR 2000 SC 3689, wherein it was observed :- "28. By "proportionality", we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least-restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the court will see that the legislature and the administrative author....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to be subjected to mutilation so as to render them as scrap (ii) furnish bond equal to the value of the impugned good. (iii) furnish Bank Guarantee equivalent to 30% of the value of the goods. (iv) pay the differential duty assessed by the department. 29. The Ld. Counsel for importer has submitted that they have no objection to comply with all the above conditions except the condition to furnish Bank Guarantee equivalent to 30% of the value of the goods. It is submitted by him that they have paid the entire duty on the declared value and also willing to pay the differential duty if any assessed by the department. We find that when the importer has made such payments and the goods having been mutilated to render them as scrap so as not to be reused as such for any purpose, the condition to furnish BG in addition to bond isnot warranted or justified. 30. The commissioner (Appeals) has relied on the judgments in the case of Bhaiya Fibre Ltd (supra) and Max Enterprises Vs. Dy. Commissioner of Custom, Chennai 2019 (367) ELT 753 (Mad.) in these decisions, the Hon‟ble High Courts have not imposed condition to furnish BankGuarantee. In pa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o the value of the goods. The appeal filed by importer C/60419/2021 is partly allowed in above terms. The appeal filed by Revenue C/60469/2021 is dismissed." 21. Similar, view has been taken by various other courts in the following decisions. - Om Udyog vs. Joint Commissioner of Customs [2013 (287) E.L.T 48 (P & H) - Kuber Casting (P) Ltd. Vs Union of India [2013 (297) E.L.T. 4 (P & H) - Sada Sukhi Electronics (p) Ltd. Vs. Commissioner of Customs (Seaport - Import) [2014 (304) ELT 42 (Madras)] - Aban Exim Pvt. Ltd. Vs. Commissioner of Customs [2014 (309) E.L.T. 485 (Del.)] - Umiya Enterprise vs. Asst. State Tax Officer, SGST Dept., Palakkad [2020 (35) G.S.T.L 78 (Ker.)] - Deenanath Maurya vs. Commissioner of Customs, Lucknow [2021 (378) E.L.T 626 (Tri. - All.)] 22. In all the above cases the condition to furnish bank guarantee on the value of goods was deleted. Infact in some case the party was directed to provide BG towards differential duty. 23. The present case stands at a better footing as the Appellant is agreeable to pay entire duty to secure provisional release of goods. As evident from the Bills of entry, the ap....