2023 (1) TMI 396

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....ontinuation of earlier proceedings made by this Court in the previous listing on 23.12.2022, which reads as follows: 'Read this in conjunction with and in continuation of earlier proceedings made in the previous listing on 21.12.2022, which reads as follows: 'Captioned writ petition has been filed inter alia assailing a 'Provisional Release Order dated 06.12.2022 bearing reference DIN:20221273MU0000414314' [hereinafter 'impugned order' for the sake of brevity, convenience and clarity]. 2. Mr.S.Baskaran, learned counsel for writ petitioner submits that the petitioner in the course of its business, imported a consignment of mobile parts, the same arrived at Chennai Airport vide an Airway Bill....

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....oner to assail the conditions for provisional release qua the impugned order were preserved. It is submitted that captioned writ petition is a continuation of this trajectory. 4. Adverting to the impugned order, learned counsel submits that there are four conditions and his complaint pertains only to two of the four conditions namely condition No.2 and (a) of 3, which read as follows: '2.Goods are provisionally assessed at value determined by DRI and duty is paid on this re-determined value. 3. .... (a) 25% of differential duty (15% of penalty and 10% of Redemption fine) i.e., Rs.14,59,021/- leviable on the goods being provisionally released.' 5. Mr.M.Santhanaraman, learned Senior standin....

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..... Registry to show the name of learned Revenue counsel in the next listing. List in the Admission Board day-after- tomorrow. List on 23.12.2022.' 2. In continuation of / pursuant to earlier proceedings more particularly paragraph 10 thereat, second respondent was present in Court instructing learned Revenue counsel Mr.M.Santhanaraman (Senior Standing counsel for Customs). 3. Learned Revenue counsel, on instructions submitted that what was hitherto being referred to as 'impugned order' is not an order and it is only a communication of approval of provisional release by adjudicating authority. To be noted, communication from second respondent to writ petitioner. Learned Revenue counsel goes on to submit that firs....

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....Section 128 of said Act. As already alluded to supra, sub-section (1) of Section 2 of said Act which defines adjudicating authority excludes Board, Commissioner (Appeals) and Tribunal. Be that as it may, an appeal to the Commissioner (Appeals) will lie as against a decision or order passed under said Act but the decision or order under Section 110A qua provisional release has not been communicated to the importer/writ petitioner as of today. Therefore, obviously learned Revenue counsel cannot be heard to contend that alternate remedy is available to the importer. It is also to be noted that in the eye of law, a decision or order which has not been communicated is no order qua the person / entity concerned. 6. Learned Revenue counse....

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....perative.' 3. To be noted, aforementioned 23.12.2022 proceedings extracts and reproduces proceedings made in the listing on 21.12.2022. As the aforementioned proceedings are now to be read as an integral part and parcel of this order, short forms, abbreviations and short references used in the earlier proceedings will continue to be used in the instant order also obviously for the sake of convenience and clarity. 4. Before proceeding further, it is necessary to make it clear that captioned 'WP.No.34159 of 2022' shall be referred to as 'II WP' and 'WP.No.34007 of 2022' shall be referred to as 'I WP' for the sake of convenience and clarity. It is further to be noted, this is based on the sequence of n....