TaxTMI 
TaxTMI 
2023 (9) TMI 1299
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed 7th December, 2021 under the provisions of Section 110-A of the Customs Act, 1962. 2. The Petitioner is proprietary concern of Mr. Kunal Javerchand Jain. On 7th December, 2021, the Petitioner imported a consignment of silver articles/utensils from United Kingdom and declared its value at Rs. 1,01,23,813/- for the purpose of customs duty. The Petitioner filed a Bill of Entry No. 6692983 for clearing the said goods for home consumption and classified the goods under Customs heading 71141110 as silver articles. 3. On 8th September, 2022 the aforesaid consignment was placed under seizure and a show cause notice dated 8th September, 2022 was issued by the Respondents to the Petitioner alleging misdeclaration of value of the goods with an in....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the appeal filed by the Respondent before Commissioner of Customs (Appeals)." 6. The counsel for the Petitioner has taken us through the memo of petition as also the correspondence and documents as annexed to the Petition. It is his submission that inspite of there being no stay on the Order-in- Original dated 16th December, 2022, the Respondents are not releasing the goods and the same is contrary to the decisions of the Supreme Court and High Court in the case of Union of India V/s. Kamalakshi Finance Corporation Ltd. 1991 (55) E.L.T. 433 (S.C.), Collector of Customs, Bombay V/s. Krishna Sales (P) Ltd. 1993 (9) TMI 124 - Supreme Court, Himgiri Buildcon & Industries Limited and Agsons Agencies (I) Private Limited V/s. Union of India Thr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of the case, we are of the view that the Respondents are not justified in not provisionally releasing the goods which were imported in December, 2021 and are lying with Respondents till today that is for almost one year and nine months. The Respondents have fairly stated that the goods imported are not prohibited goods and the only issue in dispute is with respect to the valuation. There is also no dispute that as of today, there is no stay of the Order-in-Original dated 16th December, 2022, whereby the show cause notice for misdeclaration of the value of the goods was dropped. The Petitioner is justified in relying upon the decisions of the Supreme Court in the case of Union of India (supra), Collector of Customs, Bombay (supra), Himgiri B....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ions, which are decisions of the Madras High Court as also the Delhi High Court in relation to the powers to be exercised by the Officers of the Revenue in granting provisional release. In such decisions, the Courts have observed that there is a sufficient discretion, which is available with the Adjudicating Authority in relation to the provisional release of goods depending on the category of goods. A reference is made to the decision of the Delhi High Court in Mala Petrochemical & Polymers vs. Additional Director General, DRI & Anr. W.P. (c) No. 3965/2017 dtd. 19.05.2017., in which the Court observed that the power under Section 110A of the Act involves exercised of discretion, and that the scope of judicial review in such cases was to ex....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hus, the circular would be required to be taken into consideration by the concerned officers, who are exercising powers to permit provisional release of the goods. Certainly, there cannot be an argument that the Circular would, in any manner, bind this Court to pass orders, only in terms of the circular. We are, thus, not impressed with Mr. Adik's contention that any orders passed on the petition ought to be as per the provisions of the circular. In fact, such contention also cannot be fully supported from the contents of the circular as the circular inter alia provides for different avenues recognizing the discretion of the Revenue Authorities, as to in which of the cases bank guarantee or security deposit can be insisted upon. The cir....
X X X X Extracts X X X X
X X X X Extracts X X X X
....use and a purpose. What is most relevant is a consciousness of such officers, to the fact that, when such enormous powers were conferred under law, there was equally an overwhelming corresponding public duty to be discharged, following the principles of fairness, non-arbitrariness and non-discrimination. Respondent No. 2 hence could not have taken a position, that he would not even respond to such representations/applications of the petitioner. This was certainly not, what would be expected from a public official. 10. It is clear that in the present case, Respondent No. 2 has not only failed to take cognizance of the repeated applications of the Petitioner, when powers were conferred on him to exercise discretion either to release the....