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2020 (12) TMI 379 - HC - CustomsMis-declaration of the country of origin - Provisional release of the vessel - Validity of Circular No.35/2017-Customs dated 16.08.2017 - basic contention of the seizing authority was that the vessel was carrying cargo covered by bill of entry No.2262875 dated 21.09.2020 by mis-declaring the country of origin as Iraq and port of loading as Basrah, Iraq - HELD THAT:- When respondents had allowed clearance of the consignments and learned counsel for the respondents had made it abundantly clear that respondents are not concerned with the consignments as such but with the vessel, a prima facie view may be taken that section 115 of the Customs Act more particularly sub-section (2) thereof may not be applicable. However, this is a matter which may require further investigation and adjudication, if it comes to that stage. Therefore, in the facts and circumstances of the case, it may be premature for the Court to step in at this stage to determine and adjudicate legality and validity of the seizure - This Court has held more than once that seizure is not an end in itself. The worst possible scenario that can visit the petitioner post issuance of the seizure memorandum is confiscation of the vessel under section 115 of the Customs Act in which event proviso to sub-section (2) shall come into play. Instead of adjudicating on legality or validity of the seizure at this stage, it would be more appropriate to deal with the aspect of provisional release of the vessel in terms of section 110-A of the Customs Act. Section 115 more particularly sub-section (2) thereof and the proviso to sub-section (2). If a conveyance is used as a means of transport in the smuggling of any goods, it shall be liable to be confiscated. However, it will not be confiscated if the owner proves that it was so used without his knowledge or connivance or that of his agent and the person in charge of the conveyance. As per the proviso, where such conveyance is used for carriage of goods or passengers on hire, the owner of the conveyance has to be given an option to pay fine in lieu of confiscation of the conveyance. The fine shall not exceed the market price of the goods which are sought to be smuggled or the smuggled goods, as the case may be. Even from a perusal of the impugned seizure memorandum it is seen that the officer seizing the vessel had recorded that it was not practicable to physically takeover custody of the vessel. Therefore, custody of the vessel has been handed over to the master of the vessel with the condition that he shall not remove, part with or otherwise deal with the vessel except with the permission of the Special Intelligence and Investigation Branch. It may be mentioned that in the seizure memorandum itself the value of the vessel has been mentioned at ₹ 12,74,00,000.00 approximately - on due consideration and without going into the challenge to the impugned seizure memorandum dated 26.09.2020, we do not find any good reason to decline provisional release of the vessel. It is directed that respondent No.1 to grant provisional release of the vessel MT Global Rani to the petitioner under section 110A of the Customs Act on furnishing a bond of ₹ 12,74,00,000.00 with further deposit of ₹ 25,00,000.000 in the form of bank guarantee of a nationalised bank - petition allowed.
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