TaxTMI 
TaxTMI 
TaxTMI 
2022 (6) TMI 139
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....l 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 110(1) of the Act in respect of the four Bills of Entry seizing the goods unde....
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....ming 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 in any event, admittedly, vide letter dated 04.02.2022, the department had permitted clearance of the goods imported vide impugned Bills of Entry by furnishing a bank guarantee equ....
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....rged 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 of the goods (in MT) Value of the goods (in Rs.) 1. 7078275 dated 14.01.2022 Copper Cathode Conforming to LME Grade A 496.452 352074983/- 2 7078197 dated 14.01.2022 500.67 355065655/- 3 7078308 dated 14.01....
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....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 of law, so laid down in Patel Narshi Thakershi (supra), has been reiterated by the Supreme Court in other later cases." 17. In the present case, once the provisional release order was passed, the Office of the Commissioner of Customs, Ahmedabad, Respondent herein had no jurisdiction unde....
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....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 Pvt. Limited, power of search and seizure to check evasion of tax has been upheld as temporary interference with the right of a citizen. At the same time, seizure is not only invasion of right of property but also right of privacy. Such right can be affected only by fair and reasonable procedure as held in Maneka G....
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....o 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 authority "maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve". The legislature and the administrative authority are, however, given an area of discretion or a range of choices but a....
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.... 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 para 12 of the decision in the case of Bhaiya Fibre Ltd, the Hon‟ble High Court observed as under: 12. Under the circumstances, we have to go by the principles laid down by the Customs (Provisional Duty Assessment) Regulations, 1963.We, therefore, direct the Respondent to provisionally clear the goods forming the subject matter of 12 bills of entry that have been mentioned in the petition upon the Petitioner dep....
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....s (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 appellant was always willing to deposit the entire duty of BCD + IGST which is over 25 crores and therefore, the condition to direct the appellant to furnish a bank guarantee of 15% of the value of the goods which is over 100 crores is excessive and arbitrary more importantly when the appellant is willing to deposit the duty payable on the seized goods. There is no dispute on the valuation or classification of the goods as is clear from the impugned provisional release order. 24. Looking at the facts....