TaxTMI 
TaxTMI 
2023 (12) TMI 190
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....allenged before me, is the denial of PR by the adjudicating authority. Since SCN in the case has already been issued and is pending adjudication, thus, without commenting anything on the merit or otherwise of the case but restricting myself to the point of admissibility of granting PR alone, I am of the view that I have binding precedence of order of jurisdictional Hon'ble CESTAT and Hon'ble High Court to follow on the subject matter. Respectfully following the ratio of the judgment passed by the jurisdictional Hon'ble CESTAT, Allahabad and the order of the Hon'ble High Court, Allahabad cited above, I am thus inclined to allow provisional release of the Indian Currency of Rs. 1.21 Cr. and Silver Bullion of 300/301 kgs (approx.) seized by the DRI and rejected by the adjudicating authority below, on furnishing bank guarantee of the full amount supported with cash security of 50% of the value, with inbuilt renewal clause, by the appellant. Bond value or the cash security will be with reference to the cumulative seizure value of the Silver Bullion and seized Indian Currency. On furnishing of such BG supported with Cash security as above, the department shall, pending ad....
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....123 of Customs Act, 1962 provides that in case of seizure of silver under Customs Act, 1962, the burden of proof shall lie on the person from whose possession silver was recovered, failure to this the seized silver would be considered as smuggled one. Since the accused persons could not produce any valid document in thois regard, therefore, application for provisional release of seized goods i.e. approx 300 Kgs Silver and Rs. 1,21,00,000/- cash cannot be acceded to at this moment and therefore rejected. 7. Lastly, this order being interim in nature does not cast any comment on the merit or demerit of the investigation. In no way it influences the interest of the party or the Department in any judicial or quasi judicial proceedings." 2.5 This order was challenged before the Commissioner (Appeals), who vide the impugned order have allowed the goods to be provisionally released subject to conditions imposed by him. 2.6 Aggrieved revenue have filed this appeal on the following grounds : - i. The learned appellant authority mentioned that the appellant has received advance money from M / s Hanhnar Enterprises towards purchase of impugned silver. However, investig....
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....know, Customs Appeal No 01 of 2022 dated 08.09.2022 in which Hon'ble High Court upheld order of the Hon'ble CESTAT, Allahabad passed in the case C/A/70082/2022-CU/DB dated 28/03/2022 granting provisional release of the seized gold, with only modification that the amount of cash security enhanced from 30% to 50%. In the present case the appellant authority in discussion and finding part has not discussed the condition of the aforesaid order of Hon'ble High court which further holds that "the release of gold shall abide by proceedings arising out of show cause notice dated 02/11/2021 issued under Section 124 of the Customs Act, 1962." In this regard, it is also submitted that the case mentioned by Commissioner (Appeals) was based on specific circumstances where adjudication proceedings were also guided by Hon'ble Court and the same cannot be accepted as a precedence. vii. Smuggling of foreign origin Gold and Silver have wide ranging detrimental ramifications for the Indian economy as its linked to generation and distribution of Black Money. Smuggling as per Section 2(39) of the Customs Act, 1962 is established in this matter and the goods and cash are liable ....
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.... the submissions made in appeal and during the course of argument. 4.2 We find that the issue involved in the matter is only for provisional release of the seized goods in terms of Section 110A. Section 110A of the Customs Act, 1962 is reproduced bellow:- "110A. Provisional release of goods, documents and things seized pending adjudication.-Any goods, documents or things seized under section 110, may, pending the order of the adjudicating officer, be released to the owner on taking a bond from him in the proper form with such security and conditions as the Commissioner of Customs may require." 4.3 From the plain reading of the said Section, it is quite evident that provisional release of the seized goods in terms of Section 110A goods, document and things seized, pending adjudication has been allowed as a right to the person who claims ownership of the said goods, documents and things. The only requirement is that at the time of release the bond in proper form with security and conditions as adjudicating authority may impose, should be taken from him. 4.4 The only grounds stated by the Additional Commissioner in Order-in-Original for not allowing the provisional r....
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....e appellant. 14. In view of this, the appeal for provisional release of the seized gold is allowed with conditions imposed hereinabove." 4.6 This order was challenged by the revenue before the Hon'ble Allahabad High Court (Lucknow Bench) and the appeal filed by the revenue was dismissed by observing as follows:- Learned counsel for the appellant has inter alia argued that the order passed by the Tribunal is unsustainable in the eye of law for the reason that the petitioner has failed to cooperate in response to the show cause notice issued to him on 2.11.2021. At this stage, we take note of the fact that other WRIT - C No. - 30305 of 2021; Mayank Agrawal Vs Addl. Director General Directorate Of Revenue Lko.And Ors relating to the same subject matter has been disposed of today i.e. 8.9.2022 in terms of the order passed by us which reads as under: "Heard learned counsel for the petitioner and Sri Digvijay Nath Dubey, learned counsel appearing for opposite party. Learned counsel for the petitioner has confined his prayer only to the extent that the objections filed by him before the Commissioner of Neutral Citation No. - 2022:AHC-LKO:50320-DB Cus....
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....ontrary to the well settled principles of judicial discipline. 4.8 Addressing "Lawyers' meet 2015" organized by the bar council of India on "Public litigation Policy and Access to Justice" on 25.07.2015 stated as follows: "We have envisaged a National Litigation Policy 2015 to contain frivolous or unwarranted litigation by and against the Government. This will address the problem of increasing load on the judicial system. The policy outlines mechanism to reduce filing of cases by or against the Government. It aims at avoiding unwarranted litigation and making the Government as an efficient and responsible litigant by having recourse, inter alia, to alternative dispute resolution mechanism." 4.9 In case of Pirthwi Singh & Ors. [CIVIL APPEAL NO. OF 2018 (Arising out of Diary No. 8754 of 2018) WITH (IA No. 52059 of 2018, IA No. 52058 of 2018, IA. No.52056 of 2018 and IA No. 52057 of 2018), Hon'ble Supreme Court vide order dated 24.04.2018 observed as follows: "8. The Union of India must appreciate that by pursuing frivolous or infructuous cases, it is adding to the burden of this Court and collaterally harming other litigants by delaying hearing of their cases ....
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....ng other pending cases so as to achieve the Goal in the National Legal Mission to reduce average pendency time from 15 years to 3 years. Litigators on behalf of Government have to keep in mind the principles incorporated in the National mission for judicial reforms which includes identifying bottlenecks which the Government and its agencies may be concerned with and also removing unnecessary Government cases. Prioritisation in litigation has to be achieved with particular emphasis on welfare legislation, social reform, weaker sections and senior citizens and other categories requiring assistance must be given utmost priority." [Emphasis supplied by us] 10. None of the pious platitudes in the National Litigation Policy have been followed indicating not only the Union of India's lack of concern for the justice delivery system but scant regard for its own National Litigation Policy. 11. The website of the Department of Justice shows that the National Litigation Policy, 2010 is being reviewed and formulation of the National Litigation Policy, 2015 is under consideration. When this will be finalized is anybody's guess. There is also an Action Plan to Reduce Government ....