2011 (7) TMI 381 - HC - Customs

Provisional release of goods seized under Section 110 - the affidavit in reply contains a detailed disclosure of the material which is made available during the course of investigation - Undoubtedly a notice to show cause is still to be issued to the Petitioners and an adjudication is to take place - At the same time having regard to the material which has been disclosed during the course of the investigation the order of the Commissioner of Customs (Import) requiring the Petitioners to furnish security cannot be faulted insofar as the requirement of security is concerned - It would be necessary to protect the interest of the Revenue this object could be subserved by directing the Petitioners to furnish a bank guarantee of a nationalized bank - Accordingly we direct that Condition (1) in the communication dated 15 February 2011 shall stand substituted by a direction that the Petitioner shall furnish a bank guarantee of Rs. 1, 32, 17, 036/after giving due credit for the amount of duty paid in respect of the two cranes which have already been cleared against the payment of duty - Condition (2) shall stand modified by requiring the Petitioners to furnish a bank guarantee representing 10% of the ascertained CIF value of Rs. 7, 30, 44, 625/after giving due credit in respect of the value of two cranes of which clearance has already been granted - The Petition is accordingly disposed of.

Summary

Issues:
1. Legality of orders granting provisional release of seized goods.
2. Conditions imposed on the petitioner for the release of goods.
3. Allegations of duty evasion and undervaluation by the petitioner.
4. Interpretation of Sections 110, 110A, 17, 18, and 28 of the Customs Act, 1962.
5. Comparison with relevant case laws - Navshakti Industries and Vodafone Essar.
6. Modification of conditions for provisional release of goods.

Analysis:

1. The petitioners challenged the legality of orders granting provisional release of goods seized under the Customs Act, 1962. The orders required payment of differential duty, furnishing bank guarantees, bonds, and legal undertakings. The petitioners imported cranes between 2005 and 2010, seized in 2010, and released provisionally in 2011 subject to conditions.

2. The conditions imposed on the petitioners for the release of goods were challenged as harsh. The petitioners argued that since the goods were previously cleared against payment of duty, only a bond for the differential duty should suffice. The respondents justified the conditions based on ongoing investigations revealing duty evasion and undervaluation.

3. Allegations of duty evasion and undervaluation were made against the petitioners involving the import of 90 cranes. Investigations revealed discrepancies in declared values, payments made in cash over invoice values, and understated prices. The respondents claimed the petitioners admitted to undervaluation and unofficial payments.

4. The interpretation of Sections 110, 110A, 17, 18, and 28 of the Customs Act, 1962 was crucial. Section 110 empowers seizure of goods liable for confiscation, while Section 110A allows provisional release pending adjudication. Sections 17 and 18 deal with assessment and provisional assessment of duty, while Section 28 covers recovery of duties.

5. Relevant case laws like Navshakti Industries and Vodafone Essar were compared. The court differentiated the applicability of the Delhi High Court's judgment in Navshakti Industries, emphasizing the discretion of the adjudicating authority in imposing conditions for provisional release based on specific circumstances.

6. The court modified the conditions for the provisional release of goods, directing the petitioners to furnish bank guarantees of a nationalized bank for differential duty and CIF value. The petitioners were allowed to clear seized cranes one at a time, with bank guarantees to be furnished for each clearance. Other conditions from the original order were maintained.

In conclusion, the petition challenging the legality of orders for provisional release of seized goods was disposed of after modifying the conditions for release based on the court's interpretation of the Customs Act and relevant case laws.