TaxTMI 
TaxTMI 
2009 (3) TMI 201
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....) The Detaining Authority has issued the detention order dated 5-12-2007 against Shri Deepak Kumar @ Deepak Batra, the husband of the appellant herein on the basis of the facts and documents put up before them and after satisfying with the facts on records that the detenu has propensity and potentiality to indulge in smuggling activities in future. The detenu is the mastermind for import of the goods covered under Bill of Entry No. 589144 dated 25-4-2007. The goods covered under abovementioned Bill of Entry were not only misdeclared in respect of quantity but also there were certain goods which were concealed in the container. The value of such misdeclared/smuggled goods as calculated comes to Rs. 87,07,220/- and attracting duty has worked out to Rs. 30 lacs approximately. The detenu had indulged in repeated offences since 2006 as he was not the actual owner of the Importer Exporter Code, (in short "IEC"). The grounds are based on the eight Bills of Entry which were filed by the detenu through his Customs House Agent, (in short "CHA") and also on the basis of the statements tendered by Shri Naveen Kumar, an employee of CHA. Eight Bills of Entry have been filed by the CHA in the nam....
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....traneous and irrelevant materials. (c) The offences alleged are not "smuggling" under the Customs Act, hence, there is no question of violation of any Act including the Customs Act, therefore, detention under COFEPOSA Act is not sustainable. (d) Delay in passing the detention order as well as in disposal of the representation of the detenu. 6. On the other hand, Mrs. K. Amreshwari, learned senior counsel for the Union of India and their officials, by taking us through the grounds of detention and the counter affidavit filed by the Department, submitted that the detention order was passed on the basis of the relevant materials and after subjective satisfaction by the Detaining Authority. She further submitted that there is no illegality or violation of any of the statutory provision including that of Article 22(5) of the Constitution of India and prayed for dismissal of the appeal. 7. For convenience, first let us consider whether there is any delay in passing the detention order and delay in disposal of the representation. (a) Regarding delay in passing detention order, the alleged violation relates to Bill of Entry No. 589144 dated 25-4-2007, the detention order was passed on....
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....ning the comments from the sponsoring authority and get the same disposed of which is fatal and accordingly the detention order deserves to be quashed. As against the said detention, in the counter affidavit, it is clarified that the representation was received by them on 20-6-2008. The specific assertion made in the counter affidavit has not been refuted by the detenu in his rejoinder. On the same day, i.e., 20-6-2008 itself, it was sent to the sponsoring authority, i.e. Customs Authority, who sent their comments on 27-6-2008. The comments on the said representation were sent to the COFEPOSA department on 27-6-2008, 28/29-6-2008 were holidays being Saturday and Sunday and on the next day i.e. 30-6-2008, the representation of the detenu was considered by the competent officer of the COFEPOSA department and the same was rejected. The rejection order was communicated to the detenu on 1-7-2008 and received by him on 2-7-2008. In the light of the details furnished in the counter affidavit, we do not find any substance in the contention and satisfy that there was any delay much more than the bare minimum time required to obtain the comments of the sponsoring authority accordingly, we re....
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....s P.P. Datta, Wg. Cdr. (Retd.), the CHA vide their letter dated 9-9-2007 submitted photocopies of bills of entry No. 530534 dated 28-8-2006 No. 538152 dated 25-9-2006 No. 543052 dated 16-10-2006, No. 548191 dated 7-11-2006, No. 554135 dated 1-12-2006, No. 558417 dated 20-12-2006, No. 559159 dated 23-12-2006 and No. 562725 dated 9-1-2007 [total 8 (eight) bills of entry]. It was observed that in all the said bills of entry the importers were M/s Om Prakash Deepak Kumar and the items imported were Hinges, Scrubber, Telescopic Channels from M/s Mount Overseas (HK) Ltd. and M/s PIT Industries (Hong Kong)." The same particulars were reiterated in paragraph 22. In paragraph 23, it is stated that enquiries are being conducted at overseas to find out the description of goods declared at port of export, details of payment and the value declared at port of export in respect to the goods already stands cleared under the aforesaid eight Bills of Entry. In paragraph 26, Detaining Authority has asserted that the detention order was passed "after taking into consideration the foregoing facts and materials on record" and concluded that "satisfied that you ought to be detained under the COFEPOSA Ac....
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....r passing detention order, it is clear that apart from the reference in the detention order itself about the eight consignments, paragraph 5(1) of the counter affidavit clearly shows that the Detaining Authority had relied on eight Bills of Entry while arriving subjective satisfaction. Though, learned senior counsel for the respondents, in the course of arguments, submitted that whatever said in the counter affidavit may be eschewed, in view of the fact that the very same person who signed the detention order has also signed the counter affidavit before this Court, the contents therein cannot be lightly ignored as claimed. On the other hand, the details mentioned in the detention order as well as in the counter affidavit clearly demonstrate that in addition to the Bill of Entry dated 25-4-2007 the Detaining Authority heavily relied on eight Bill of Entries /consignments and satisfying that he will continue to indulge in smuggling activities which will be detrimental to the department passed the impugned detention order. 9. We have already pointed out that the authorities are free to reopen the case in respect of import of eight consignments/Bill of Entries which is said to have be....
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....ider the case on hand on the above principles, though, the Detaining Authority has relied on the import of eight consignments, the fact remains that the goods were cleared after passing appropriate orders by the authorities and any event on the date of passing of detention order it was at the stage of notice calling for reopening the issue hence the same cannot be a valid material for passing an order of detention against the detenu. In fact, while determining the subjective satisfaction the Detaining Authority had said that enquiries are pending on all those documents placed on record and relied upon by them. Use of incomplete material which is either pending or inconclusive cannot be a basis for detention order. In the recent judgment Kothari Filaments & Anr. v. Commissioner of Customs (Port), Kolkata and Ors. JT 2009 (1) SC 516, this Court has held that if any enquiry is inconclusive pending consideration the same cannot be the basis for passing an order against the person concerned. Therefore, the eight consignments/Bill of Entries relied upon by the Detaining Authority become irrelevant and conclusion on extraneous material cannot be sustained. 10. Learned senior counsel for....
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....nder the regulations in an import manifest or import report which are not so mentioned; (g) any dutiable or prohibited goods which are unloaded form a conveyance in contravention of the provisions of section 32, other than goods inadvertently unloaded but included in the record kept under sub-section (2) of section 45; (h) any dutiable or prohibited goods unloaded or attempted to be unloaded in contravention of the provisions of section 33 or section 34; (i) any dutiable or prohibited goods found concealed in any manner in any package either before or after the unloading thereof; (j) any dutiable or prohibited goods removed or attempted to be removed from a customs area or a warehouse without the permission of the proper officer or contrary to the terms of such permission; (k) any dutiable or prohibited goods imported by land in respect of which the order permitting clearance of the goods required to be produced under section 109 is not produced or which do not correspond in any material particular with the specification contained therein; (l) any dutiable or prohibited goods which are not included or are in excess of those included in the entry made under this Act, or in the....
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....ain basis for the opinion formed by the Detaining Authority that the detenu had the propensity and potentiality to indulge in smuggling activities in future. 12. As already discussed, even based on one incident the Detaining Authority is free to take appropriate action including detaining him under COFEPOSA Act. The Detaining Authority has referred to the violation in respect of importable goods covered under Bill of Entry No. 589144 dated 25-4-2007. In an appropriate case, an inference could legitimately be drawn even from a single incident of smuggling that the person may indulge in smuggling activities, however, for that purpose antecedents and nature of the activities already carried out by a person are required to be taken into consideration for reaching justifiable satisfaction that the person was engaged in smuggling and that with a view to prevent, it was necessary to detain him. If there is no adequate material for arriving at such a conclusion based on solitary incident the Court is required and is bound to protect him in view of the personal liberty which is guaranteed under the Constitution of India. Further subjective satisfaction of the authority under the law is not....