TaxTMI 
TaxTMI 
2023 (5) TMI 1072
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....ntelligence (DRI), in part from the workshop/factory premises of the respondent and in part from the Airport, after the gold had crossed the Customs barrier. The respondent disputes the legitimacy of the seizure, contending that the gold had been earlier exported by the respondent and was being reimported into India within a year of export, and was entitled, therefore, to complete duty exemption under S. No. 5 of Notification 45/2017-Cus dated 30th June 2017, as further clarified by CBIC Circulars Nos 21/2019-Cus dated 24th July 2019 and 108/27/2019-GST dated 18th July 2019. A Show Cause Notice came to be issued by the DRI to the respondent on 26th September 2019, which is presently pending adjudication. 4. In the meanwhile, the respondent applied for provisional release of the seized gold, under Section 110A1 of the Customs Act, 1962. The Additional Director General (ADG), DRI, rejected the request vide order dated 4th October 2019. The respondent appealed to the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) (hereinafter "the learned Tribunal"). Returning a positive finding of fact that the gold imported had been verified and found to tally with the gold earlier exp....
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....r Harish N Salve, Senior counsel on behalf of the respondent. 4. We are of the considered view that the quantum of the bank guarantee which has been directed to be furnished by the High Court, should be enhanced from Rs 10 crores to Rs 15 crores. Mr Salve has stated on instructions that he has no objection to an enhancement of the quantum of the bank guarantee. We accordingly modify the order of the High Court by directing that the quantum of the bank guarantee shall stand enhanced to Rs 15 crores. The other conditions which have been imposed by the High Court shall continue to govern. 5. The Special Leave Petition is accordingly disposed of. 6. Pending applications, if any, stand disposed of." 7. The lis, as regards provisional release of the gold seized from the factory/warehouse of the respondent as well as 25400.06 grams gold jewellery covered by Bill of Entry (B/E) No. 107190 dated 26th February 2019 seized at the Airport, thus, stands concluded, with the Supreme Court upholding our judgment subject to enhancement of the quantum of B/G to be furnished from Rs. 10 crores to Rs. 15 crores. 8. Qua the third consignment, viz. 25299.68 grams gold jewellery also seized at th....
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....nder review suffers from an error apparent on the face of the record, insofar as, by virtue of Section 44 of the Customs Act, Section 46 does not apply to goods imported as baggage. 15. The appellant filed a response to the Review Petition and the respondent-review petitioner has filed a rejoinder thereto. 16. In its reply to the Review Petition, the only contentions advanced by the appellant-DRI are that (i) Standing Order (SO) 3/2018 dated 18th December 2018 mandated filing of a B/E, (ii) Rule 5 of the Baggage Rules, 20166, allowed duty free clearance, in bona fide baggage, of jewellery upto a weight of 20 grams and value of Rs. 50000 only by passengers returning after a stay abroad for more than 1 year, and (iii) in the event of import of goods as baggage, a baggage declaration was required to be filed under the Customs Baggage Declaration Rules. Apropos Notification 45/2017-Cus, para 19 of the reply states that the Notification permits duty free import of gold jewellery only if the Assistant Commissioner (AC)/Deputy Commissioner (DC) is satisfied that the gold jewellery being reimported is the same as that which had been exported earlier, and that no such satisfaction ....
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....g list given to him at the time of export. The jewellery shall be appraised by matching with the documents and photographs provided in the sealed cover. Once the same are tallied and the jewellery released, one set of the documents will be handed over to the importer for submitting it to the Bank for remittance purpose. Entries in the Register will be matched against the particulars entered earlier. One copy of the documents shall be retained by the Customs so that the unsold details will be entered in the Register and the data will be reconciled." (Emphasis supplied) 19. Apropos the requirement of filing a Baggage Declaration, the review petitioner submits that, as per Notification 31/2016-Cus dated 1st March 2016, baggage declarations are required to be filed only by "passengers who come to India and have anything to declare or are carrying dutiable or prohibited goods". It is asserted that Amit Pal Singh, on arrival, proceeded to the Red Channel and followed the procedure envisaged in SOP dated 29th March 2016 supra. In any event, submits the review petitioner, these factors pale into insignificance, given the fact that the jewellery which was imported by Amrit Pal Singh was f....
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.... the Learned Advocate for the appellant on 24th April 2019. This bill of entry also covers a gold jewellery weighing 25.209 kg. Thus, we find that importing person Shri Amit Pal Singh has presented the g gold jewellery which was being imported on 24th April, 2019 to the Assessing Officer and has claimed that the gold jewellery is 'India made' which is being reimported after same had been exported for exhibition purpose vide shipping Bill no. 117209, dated 20th April 2019 covering quantity of 33.805 kgs, and vide shipping Bill No. 117932, dated 13th March 2019 under which jewellery weighing 25.299 kg. was exported. It is a matter of record that at the time of the re-import of balance quantities of the jewellery, the Assessing Officer was presented with necessary documents, such as, shipping bill along with invoices, permission for taking goods for exhibition, export declaration form of the appellant, Customs endorsed colour photographs of jewellery, the bill of entries for re-import along with packing list covering details of jewellery items of import along with the photocopies of the jewellery. We find that authenticity of the goods being re-imported being sae as had been exported ....
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...., by the importer seeking provisional release. That is an exercise which has to suffer the rigour of the adjudicatory process, which, in the case of the present respondent, stands set in motion with the issuance of Show Cause Notice dated 26th September, 2019. 61. At the same time, provisional release is not a rule, or a vested right. Section 110A has, advisedly, left the matter to the discretion of the adjudicating authority, to be exercised in his best judgment, keeping in mind the overall facts and circumstances. The use of the word "may" is amply sufficient to clothe the adjudicating authority with the jurisdiction to decide one way or the other, on the request for provisional release, keeping, at all times, the interests of justice paramount. The sequitur would, however, be that, where the authority - in the present case, the learned Tribunal - has decided to provisionally release the goods in issue, and has fixed the terms of provisional release, this Court would, in appellate jurisdiction under Section 130 of the Act, interfere only where the exercise of discretion, by the learned Tribunal, is found to be perverse, in that it is contrary to the facts before the learned Tri....
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....ecision, of the learned Tribunal, to allow provisional clearance of the jewellery, we are not required to enter into the correctness of these facts, especially as, save and except by way of reference to various statements, recorded during the course of investigation, there is precious little, in the appeal of the ADG, DRI, to dispute the same. 72. Insofar as the quantity of 25400.06 grams of gold jewellery, covered by the registered, apprised, dated and signed Bill of Entry, dated 20th April, 2019, is concerned, therefore, the decision, of the learned Tribunal, to allow provisional clearance, cannot be said to be perverse, so as to give rise to any substantial question of law, as would warrant interference, in appeal, by us. We may repeat, in this context, that the decision, as to whether the gold jewellery ought, or ought not, to have been provisionally released, was entirely discretionary. The facts before the learned Tribunal, which are also before us, cannot be said to be such as would render the exercise of discretion, by the learned Tribunal, in favour of provisional release of the 25400.06 grams of gold jewellery, perverse. Absent such perversity, no case, in our view, can....
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....f the learned Tribunal regarding the identity of the imported gold jewellery with the exported jewellery also extends to the 25299.68 grams gold jewellery forming subject matter of the present review petition. By operation of Notification 45/2017-Cus, therefore, the plaintiff would, prima facie, be entitled to duty free clearance of the imported jewellery. 26. The only reason why we did not choose to extend, to the said imported gold jewellery, the same approach as was extended to the other imports, was our view that, in respect of the 25299.68 grams of gold jewellery, no signed and endorsed B/E was available. 27. The review petitioner has sought to point out that the said 25299.68 grams gold jewellery was imported as baggage. This assertion stands supported by paras 2, 2.1.1, 5.2(i), 5.2(v) and 25.4 of the show cause notice dated 26th September 2019, which read thus: "2. On the basis of above specific information, DRI officers started keeping surveillance and the said person was identified by the DRI officers and intercepted near the Customs exit gates alongwith two bags i.e. one black colour backpack and one black colour stroller bag being carried by him. After interception S....
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....ing Bill for Export of Duty Free goods Export Promotion Copy (attached with the said xerox copy of Invoice), it has been mentioned at 'Gold- unsold- 25299.680 grams -USD1044601.36 having signature with stamp of Sh. Vikram Bhasin, Jewellery Appraiser customs, IGI Airport, New Delhi. (iii) Xerox copy (photocopy) of Invoice (on which a no. '117209' was given by blue pen) having Invoice no. ITS/EXH/028 dated 20.02.2019 having Exporter Name: M/s Its My Name Private Limited, C-1,2,3. 10th Floor, PP Tower, Netaji Subhash Palace, Pitampura, New Delhi, Consignee Name: M/s MN Khan Jewellers (FZE), PO Box 513648, Saif Office, PB-09-49, Dubai UAE, with remarks 'Personal Carriage by Sh. Amit Pal Singh Passport No. Z4857412 containing the declaration of 0.916 fine gold jewellery having gross weight 33805.770 grams, having remarks 'For Exhibition Purpose'. Further, on the body of the xerox copy of Export Declaration Form No. G19000021397 and photocopy of Shipping Bill for Export of Duty Free goods Export Promotion Copy [attached with the said xerox copy of Invoice), it has been mentioned at 'Gold - unsold - 25400.060 grams US01075107.13 having signature with stamp of....
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....file are packing list, Sold/Unsold list, export documents, P.D. bond and Bill of Entry. The export documents include invoices and photocopy of shipping bill; ***** v) On being asked about how did he ensure that the gold jewellery which was being re-imported by hand carry was the same that was exported for exhibition purposes, he stated that re-imported gold jewellery was matched through signed and stamped photographs. He further stated that at the time of export each photograph is signed and stamped by jewellery appraiser; he also informed that appraisement of gold jewellery was being done on the shipping bill and Export Document Form (EDF) until Dec 2018 and thereafter it is being done on the Bill of Entry submitted at the time of re-import along with Packing List: 25.4 Import of gold as baggage by a passenger of Indian origin or a passenger holding a valid Passport issued under the Passport Act, 1967 is being allowed since Notification No. 117/92-Cus. dated 01.03.1992 as amended/superseded and issued under Section 25(I) of the Act ibid came into force from 01.03.1992, whereby the "eligible passengers" are being permitted to import gold, in any form, up to a permissible quan....
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.... regular provisions applying for import of baggage appear to have been substituted, in the case of such re-import, by the procedure envisaged by Clauses 2(xii) and 2(xiii) of the SOP dated 29th March 2016 supra. 32. There is a clear averment, by the review petitioner, that the said procedure was in fact followed even in respect of 25299.68 grams gold jewellery. The learned Tribunal has also, in its Final Order, held, on facts, that the entire quantity of gold jewellery was subjected to appraisal and the appraiser had, on comparing the gold jewellery with the jewellery which had earlier been exported vide shipping bills No. 117932 dated 13th March 2019 and 117209 dated 20th February 2019, found that the jewellery which was being sought to be imported by the respondent-review petitioner was, in fact, the same jewellery which had earlier been exported for exhibition abroad. 33. There is no categorical traversal, of these findings, in the appeal preferred by the DRI, as has already been observed by us in the judgment under review. Even otherwise, absent perversity, these findings cannot be re-examined in an appeal under Section 130 of the Customs Act, which is restricted to substanti....