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2018 (10) TMI 115 - HC - CustomsDetention of goods - mis-declaration of the value of the cargo - ownership of the Cargo - whether the conditions imposed in the order dated 19.01.2018, for provisional release are fair and reasonable or is it onerous and unreasonable? Held that:- Undoubtedly, there is room for exercise of discretion while considering an application for provisional release exercising powers under Section 110A of the Act. However, such exercise cannot be unguided or unbridled. The exercise of discretion and imposition of conditions should satisfy the test of reasonableness vis-a-vis the factual matrix - What is required to be seen in the instant case is whether there was justification on the part of Customs Department to insist upon Bank Guarantee for ₹ 1,00,00,000/-. Admittedly, in the order dated 19.01.2018 no reasons have been assigned by the Customs Department to impose such a condition. The circular does not foreclose exercise of the discretion by the competent authority, who imposes condition on examination of the Cargo. On a reading of the show cause notice it appears that there are several materials, which have been referred to in the show cause notice and it is for respondent to reply to the show cause notice and participate in the adjudication. Since, show cause notice has been issued to the respondent, this Court would be fully justified in considering the allegations made in the show cause notice while considering as to what would be the reasonable conditions to be imposed in the respondent's case, while ordering release. Non-cooperation of the respondent with the investigation - Held that:- It was noted that the respondent did not co-operate with the DRI, Ahmedabad and one Senior Intelligence Officer of DRI, Ahmedabad was present in Court and directions were issued after which, the respondent appeared before the Officer at Chennai and a statement was recorded. Therefore, Mrs.R.Hemalatha is right in her submission that the non-cooperative attitude of the assessee also to be borne in mind so that ultimately when the adjudication is completed, the amount of duty if determined, should not become irrecoverable. Provisional release of goods allowed subject to conditions imposed - appeal allowed in part.
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