TMI Blog2011 (5) TMI 375X X X X Extracts X X X X X X X X Extracts X X X X ..... guarantee equal to 25% of the value of goods is clearly arbitrary and mala fide and the said condition cannot be sustained - Decided in favour of the assessee - 6732 of 2011 - - - Dated:- 9-5-2011 - Adarsh Kumar Goel, A.C.J. and Ajay Kumar Mittal, J. REPRESENTED BY : S/Shri Jagmohan Bansal with Saurabh Kapoor and Rishabh Kapoor, Advocates, for the Petitioner. Shri Kamal Sehgal, Advocate, for the Respondent. [Order per : Adarsh Kumar Goel, ACJ.]. This petition seeks quashing of seizure memo and for permitting clearance of goods seized and detained by the Customs Authorities under the provisions of Customs Act, 1962 ( the Act ). 2. The case set out in the petition is that the petitioner imported Heavy Melting Steel Scrap (HMSS) from South Africa under Open General Licence Scheme subject to Nil basic customs duty. The petitioner filed seven bills of entry for clearing the said goods in 31 containers on different dates in January 2011 but the custom authorities did not allow clearance on the ground that the material so imported was not scrap but re-rollable metal attracting 5% basic custom duty. The goods were seized under Section 110 of the Act. The goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n detaining the goods and continuing to detain the same was without jurisdiction and arbitrary. 4. The stand of the respondents in their reply is that goods were detained on account of dispute of classification and valuation. The goods were re-rollable material wrongly described as HMSS to evade payment of duty and once there is a misdeclaration, the goods are liable to be confiscated under Section 111 of the Act. Report of the Chartered Engineers suggests that there is undervaluation. All the officers of the Directorate of Revenue Intelligence were officers of Customs and could be treated as proper officers to seize the goods. Order of provisional release had been passed on 3-5-2011 to release the goods subject to following conditions :- (i) On payment of differential duty. (ii) On furnishing a bond for the full value of the seized goods i.e. Rs. 1,24,85,736/-. (iii) On furnishing a B/G equal to 25% of the full market value of the seized goods. (iv) On furnishing a declaration in the form of an affidavit that the party will not challenge the value and identity of the seized goods during the course of adjudication or prosecution proceedings, if any. 5. We ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner that at this stage, the relief required to be pressed was of immediate release of goods on reasonable conditions. 11. We find merit in the contention that requirement of giving a declaration that the petitioner will not challenge the value of the goods, is unreasonable and arbitrary. The petitioner cannot be debarred from asserting its version as to the value and classification of goods. If such a condition is allowed to be imposed, the department can unilaterally allege any valuation and continue to keep the goods under detention unless the affected party agrees to withdraw the challenge to the valuation. This will amount to denial of justice. Similarly, requirement of furnishing bank guarantee equal to 25% of the full market value of the seized goods is also, in the facts and circumstances of the case, arbitrary. Mere fact that condition of 10% of bank guarantee was upheld by this Court in T.L. Verma and M/s. Kundan Rice Mills cannot be justification to impose such conditions in each and every case. In those cases, this Court was satisfied that the importers had adopted fraudulent tactics which, prima facie, justified opinion for confiscation of goods. The said j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property. (underlining supplied). xx xx xx xx xx 55. In Smt. Maneka Gandhi v. Union of India and Another (1978) 1 SCC 248 - a 7-Judges bench decision, P.N. Bhagwati, J. (as His Lordship then was) held that the expression personal liberty in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status distinguishing as fundamental rights and give additional protection under Article 19 (Emphasis supplied). Any law interfering with personal liberty of a person must satisfy a triple test; (i) it must prescribe a procedure (ii) the procedure must withstand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation; and (iii) it must also be liable to be tested with reference to Article 14. As the test propounded by Article 14 pervades Article 21 as well, the law and procedure authorizing interference with personal liberty and right of privacy must also be right and just and fair and not arbitrary, fanciful or oppressive. If the procedure prescribed does not sati ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
