TaxTMI 
TaxTMI 
2025 (4) TMI 1250
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....etting aside the Impugned Intimation dated 03.12.2024 and consequently direct the Respondent No. 3-5 to defreeze the Petitioners' bank accounts as mentioned in the table of Para No. 1 above and (Reproduced below for ready reference) Sr. No. Name of the A/c Holder Account No. IFSC Code 1 Mundra Exim Pvt. Ltd. 603105265939 ICICI0006031 2 Mundra Agro Foods LLP 603105255414 ICICI0006031 3 Mundra Agro Foods LLP 3247753210 KKBK0000464 4 Mundra Exim Pvt. Ltd. 09745100000116 DCBL0000097 (c) Pass such further or other orders as may be deemed fit and proper in the interest of justice. (d) Allow the petition with costs." 3. Facts draped in brevity, as per pleadings of the parties, which are necessary for the disposal of the present petition are being reproduced as hereunder:- i. Petitioners are importer of Sri Lankan-origin edible goods, specifically Areca Nuts, which had sought exemption benefits under the Indo-Sri Lanka Free Trade Agreement (ISLFTA). ii. During an investigation into F. No. DRI /IZU /CI /INT-77(2023) /ENQ-52), Respondents scrutinized the past imports done by Petitioners in Nove....
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....een place on the judgment of the Hon'ble Supreme Court in M/s Radha Krishan Industries v. State of H.P., AIR 2021 SC 2114.It has been further argued that the pendency of the proceedings of section 28, 28AAA or 28 B of the Customs Act is the pre-requisite mandate for invoking the provisions of section 110(5) of the Customs Actin view of conjoint reading of Section 28 BA r/w 110(5) of Customs Act, 1962, which in this case were admittedly not pending before adjudicating Authority as no show cause notice under Section 28, 28AAAor 28-B of Customs Act, 1962 was issued to petitioners for initiating such proceedings. The investigation which the Respondent Authorities are carrying out cannot be equated with the pendency of proceedings and hence provisional attachment in absence of pending proceedings is without jurisdiction. Reliance has also been placed upon Circular No. 10/2008-Customs and F.No.401/7/2004-Cus.III(Pt.) dated 30.06.2008 issued by the Government of India, Ministry of Finance, Department of Revenue, Central Board of Excise & Customs (Annexure P/12) wherein it has been specifically instructed that the proceedings for provisional attachment can be initiated only after issue of ....
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....are applicable in the present case, as no such allegations have been made by answering Respondents or opined prior to issuance of the impugned attachment order dated 03.12.2024. To bolster this submission, reliance has been placed on judgment of Hon'ble Apex Court in Commissioner of Customs, Mumbai v. M.M.K Jewellers & Anr 2008 (5) SCC 617 and Uniworth textiles Ltd. v. Commissioner of Central Excise, Raipur 2013(9) SCC 753. 7. Per Contra, learned Counsel for Respondents has argued that the present petition is not maintainable in view of alternative remedies being available to the petitioners under Section 110A of Customs Act, 1962. On merits, it has been argued that the petitioners have not challenged the basic order dated 02.12.2024 on the basis of which impugned intimation dated 03.12.2024 has been issued, and hence the present petition is not maintainable in view of law laid down by Hon'ble Apex Court in Hindustan Commercial Corporation Pvt. Ltd. Vs. State of M.P 2025 (1) JLJ 54. It has been argued that Note sheet/ Approval dated 02.12.2024 (Annexure R/1) records subjective satisfaction and reasons for provisionally attaching the bank account of the petitioner and hence all t....
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....e to challenge the same. Even otherwise, in the considered opinion of this court, there is no need for separate challenge to the note-sheet dated 02.12.2024 as the same stood merged with impugned intimation dated 03.12.2024. 11. So far as the objection of Respondents regarding the maintainability of the petition in view of availability of alternative efficacious remedy is concerned, it has been settled by catena of decisions that the availability of alternative remedy is not an absolute bar for granting relief in the exercise of power under Article 226 of the Constitution of India as the same is a rule of convenience and self imposed restriction and there are certain exceptions to the said rule, namely:- i. The writ petition has been filed for the enforcement of any of the Fundamental Rights protected by Part III of the Constitution ii. There has been a violation of the principle of natural justice iii. The order or proceedings are wholly without jurisdiction. iv. the vires of an Act is challenged. (Vide Harbanslal Sahnia v Indian Oil Corpn. Ltd, (2003) 2 SCC 107) 12. At this juncture fruitful reference can be made tojudgment of Ho....
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....t petition before the High Court under Article 226 of the Constitution challenging the order of provisional attachment was maintainable; iii) The High Court has erred in dismissing the writ petition on the ground that it was not maintainable; iv) The power to order a provisional attachment of the property of the taxable person including a bank account is draconian in nature and the conditions which are prescribed by the statute for a valid exercise of the power must be strictly fulfilled; v) The exercise of the power for ordering a provisional attachment must be preceded by the formation of an opinion by the Commissioner that it is necessary so to do for the purpose of protecting the interest of the government revenue. Before ordering a provisional attachment the Commissioner must form an opinion on the basis of tangible material that the assessee is likely to defeat the demand, if any, and that therefore, it is necessary so to do for the purpose of protecting the interest of the government revenue. vi) The expression "necessary so to do for protecting the government revenue" implicates that the interests of the government revenue cannot be prote....
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....ection 28-BA and Section 110(5) of Customs Act, 1962. If this court comes to conclusion that the impugned intimation dated 03.12.2024 is without jurisdiction as the same has been issued during investigation and not during any proceedings which is impermissible in accordance with provisions of law, then certainly this petition would be maintainable and liable to be entertained by this court. 14. Before adverting the aspect that whether the impugned intimation/attachment order dated 03.12.2024 issued under Section 110(5) of Customs Act, 1962 has been issued without jurisdiction or not? it would be apposite to reproduce relevant excerpts of legal provisions of Customs Act, 1962 and Circular No. 10/2008-Customs and F.No.401/7/2004-Cus.III(Pt.) dt. 30.06.2008 issued by the Government of India, Ministry of Finance, Department of Revenue, Central Board of Excise & Customs, interpretation of which is essential to adjudicate the controversy involved in the present lis. Relevant Legal Provisions 28. Recovery of [duties not levied or not paid or short-levied or short-paid] or erroneously refunded.- (1) Where any [duty has not been levied or not paid or short-levi....
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....b) of sub-section (1)falls short of the amount actually payable, then, he shall proceed to issue the notice as provided for in clause (a) of that sub-section in respect of such amount which falls short of the amount actually payable in the manner specified under that subsection and the period of[two years] shall be computed from the date of receipt of information under sub-section (2). (4) Where any duty has not been [levied or not paid or has been short-levied or short-paid]or erroneously refunded, or interest payable has not been paid, part-paid or erroneously refunded, by reason of,- (a) collusion; or (b) any wilful mis-statement; or (c) suppression of facts, by the importer or the exporter or the agent or employee of the importer or exporter, the proper officer shall, within five years from the relevant date, serve notice on the person chargeable with duty or interest which has not been [so levied or not paid] or which has been so short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice. (5) Where any [duty has not been le....
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....d, and the provisions of this section shall apply to such supplementary notice as if it was issued under the said sub-section (1) or sub-section (4).] (8) The proper officer shall, after allowing the concerned person an opportunity of being heard and after considering the representation, if any, made by such person, determine the amount of duty or interest due from such person not being in excess of the amount specified in the notice. (9) The proper officer shall determine the amount of duty or interest under sub-section (8),- (a) within six months from the date of notice, in respect of cases falling under clause (a) of sub- section (1); (b) within one year from the date of notice, in respect of cases falling under sub-section (4). [Provided that where the proper officer fails to so determine within the specified period, any officer senior in rank to the proper officer may, having regard to the circumstances under which the proper officer was prevented from determining the amount of duty or interest under subsection (8), extend the period specified in clause (a) to a further period of six months and the period specified in clause (b) to ....
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....ty and the interest thereon shall be computed accordingly.] [(11) Notwithstanding anything to the contrary contained in any judgment, decree or order of any court of law, tribunal or other authority, all persons appointed as officers of Customs under subsection (1) of section 4 before the 6th day of July, 2011 shall be deemed to have and always had the power of assessment under section 17 and shall be deemed to have been and always had been the proper officers for the purposes of this section.] Explanation 1.-For the purposes of this section, ―relevant date means, (a) in a case where duty is[not levied or not paid or short-levied or short-paid], or interest is not charged, the date on which the proper officer makes an order for the clearance of goods; (b) in a case where duty is provisionally assessed under section 18, the date of adjustment of duty after the final assessment thereof or reassessment, as the case may be; (c) in a case where duty or interest has been erroneously refunded, the date of refund; (d) in any other case, the date of payment of duty or interest. .......... 28AAA. Recovery of duties in certa....
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....re an order determining the duty has been passed under section 28, no order to recover that duty shall be passed under this section. (5) Where the person referred to in sub-section (3) fails to repay the amount within the period of thirty days specified therein, it shall be recovered in the manner laid down in sub-section (1) of section 142.] [28BA. Provisional attachment to protect revenue in certain cases. - (1) Where, during the pendency of any proceeding under section 28, [or section 28AAA or section 28B], the proper officer is of the opinion that for the purpose of protecting the interests of revenue, it is necessary so to do, he may, with the previous approval of the [Principal Commissioner of Customs or Commissioner of Customs], by order in writing, attach provisionally any property belonging to the person on whom notice is served under [sub-section (1) or sub-section (4) of section 28] [or subsection (3) of section 28AAA or sub-section (2) of section 28B], as the case may be, in accordance with the rules made in this behalf under section 142. (2). Every such provisional attachment shall cease to have effect after the expiry of a period of....
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....ion the law ministry has advised that suitable guidelines should be issued to implement Section 28 BA of the Act. The following guidelines are therefore, issued to maintain uniformity in implementation by field formations. i. The proceedings of provisional attachment can be initiated only after issue of SCN under Section 28 or 28 B of the Act ii. During the pendency of proceedings under Section 28 or 28 B of the act, if the proper officer is of the opinion that in order to protect the interests of revenue, it is necessary to attach the property of the notice, he shall prepare a proposal in the format prescribed in the Annexure hereto and forward the same to the jurisdictional commissioner of customs for his approval, except in cases where the proceedings under Section 28 or 28 B of the Act are pending before such Commissioner of Customs, in which case he shall himself make the order of attachment in accordance with the procedure set out in para (iv) below. ................... Note:- At the time of issuance of this circular, Section 100(5) of Customs Act, 1962 had not been enacted and was inserted vide Finance (No. 2) Act, 2019(23 of 2019), dt. 01....
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....rliament to go further and do more; l. When a word used in a taxing statute is to be construed and has not been specifically defined, it should not be interpreted in accordance with its definition in another statute that does not deal with a cognate subject. It should be understood in its commercial sense. Unless defined in the statute itself, the words and expressions in a taxing statute have to be construed in the sense in which the persons dealing with them understand, that is, as per the trade understanding, commercial and technical practice and usage." 16. Applying the rules for interpretation as laid down in Chief Commissioner of Central Goods and Service Tax & Ors. Vs. M/s Safari Retreats Private Ltd. & Ors.2025 (2) SCC 523to the relevant legal provisions as enumerated above, it is quite apparent that the word "proceedings" has not been defined under Customs Act, 1962 but the said word has been used in Section 110(5) of Customs Act, 1962 making it a condition precedent that provisional attachment of bank account can be done during pendency of any proceedings under the Customs Act, 1962. Pertinently, Section 110(5) has been introduced vide Finance (No. 2) Act, 201....
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.... account would only be available to the petitioners only after initiation of "proceedings" pending order of the adjudicating authority whereas in the case at hand no proceedings are pending before adjudicating authority as no SCN has been issued to petitioners and the matter is still under investigation. Hence, in the considered opinion of this court, the remedy under Section 110A is not available to the petitioners during the stage of investigation but is only available after the proceedings are initiated before the adjudicating authority. Therefore, in view of the above, this court is of the considered opinion that the present petition challenging impugned intimation is maintainable as no alternative remedy is available to the petitioners under Section 110A of Customs Act, 1962 against impugned intimation dated 03.12.2024. 20. Learned Counsel for the petitioners has also raised a ground regarding colourable exercise of power by Respondents in provisionally attaching the bank accounts of the petitioners by finding out ways to keep the bank accounts of petitioners remain provisionally attached for a period of more than one year in order to circumvent statutory restriction provid....