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2020 (10) TMI 233 - HC - CustomsRelease of imported watch of petitioner - Direction to the respondents to give effect to the order-in-appeal dated 29.11.2019 and to allow clearance of the imported watch covered by bill of entry No.9494939 dated 02.01.2019 on payment of duty on the declared value - whether respondent No.3 is justified in not releasing the imported watch of the petitioner in terms of the order-in-appeal dated 29.11.2019 and insisting on provisional release of the same subject to the conditions mentioned in the letter dated 04.02.2020? HELD THAT:- On going through the order-in-appeal we do not find presence of any departmental representative in the appeal hearing though appellants i.e., the petitioners were duly represented by learned counsel who had also filed written submission. It does not appear that any objection or written submission were filed on behalf of the respondents before the appellate authority. From the affidavit of the respondents it is seen that the order-in-appeal dated 29.11.2019 was received by the respondents on 18.12.2019. Committee of Commissioners took the decision on 05.03.2020 that the Customs Department should file appeal against the order-in-appeal before CESTAT whereafter the appeal alongwith stay application were filed on 09.06.2020 before CESTAT, Mumbai Bench. Be that as it may, since the Customs Department has preferred appeal before the CESTAT, we would refrain from expressing any opinion on merit. That leaves us with the question which we have formulated on the basis of objections raised by the respondents. The period of limitation of three months commences from the date on which the order sought to be appealed against is communicated and not from the date of decision of the Committee of Commissioners. Reverting back to the facts of the present case, according to the respondents themselves the order-in-appeal dated 29.11.2019 was received by the respondents on 18.12.2019. The limitation period of three months therefore commences from this date - The word ‘month’ is not defined in the Customs Act. We therefore take recourse to the definition of the said word as provided in the General Clauses Act, 1897. Section 3 of the said act provides for various definitions and says that after commencement of the General Clauses Act, 1897, the meaning given to the expressions contained in various sub-sections of section 3 would be applicable to all central acts and regulations unless there is anything repugnant in the subject or context. As per sub-section (35) of section 3, the word ‘month’ has been defined to mean a month reckoned according to the British calendar. In the present case the limitation period of three months which commenced on 18.12.2019 had expired on 18.03.2020. When the order-in-assessment has been set aside by the appellate authority, the original order no longer survives until and unless the order-in-appeal is either stayed or in the ultimate analysis itself is set aside. Therefore, basing upon the order-in-assessment which no longer survives, it is not open to the departmental authorities to grant provisional release of the good in question that too subject to fulfillment of certain conditions which are clearly beyond the order-in-appeal. When the petitioners themselves sought for provisional release of the imported watch and the same having been granted by the respondents subject to fulfillment of the conditions mentioned in the letter dated 04.02.2020, whether it is open to the petitioners to seek the relief as is being sought in the present proceeding? - HELD THAT:- The only provision in the Customs Act which deals with provisional release of goods etc. is section 110-A. This provision says that any goods, documents or things seized under section 110 may pending the order of the adjudicating authority be released to the owner on taking a bond from him in the proper form with such security and conditions as the adjudicating authority may require. From the above, it is seen that section 110-A will come into play only if two pre-conditions are fulfilled, namely, there must be seizure under section 110 and the goods, documents or things so seized may be subject to proceeding before the adjudicating authority. Seizure is dealt with in section 110. Sub-section (1) makes it very clear that if the proper officer has reason to believe that any goods are liable to confiscation under the Customs Act, he may seize such goods. In the instant case, admittedly there was no seizure and secondly, assessment of the good in question was not pending consideration. Assessment was already made by way of the order-in-assessment dated 25.03.2019. It is another matter that even that order-in-assessment has been set aside by the order-in-appeal. Since there is neither any seizure nor pendency of proceeding before the adjudicating authority, question of application of section 110-A does not arise. The objections raised by the respondents are legally and factually unsustainable and thus are hereby rejected - respondent Nos.2 and 3 to release the imported watch of the petitioners forthwith in terms of the order-in-appeal dated 29.11.2019 - Petition allowed.
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