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2022 (1) TMI 114 - AT - CustomsRejection of request for provisional release of the seized goods - high end wrist watches - prohibited goods or not - Section 110A of the Customs Act - HELD THAT:- Discretion is cast upon the adjudicating authority under section 110A of the Customs Act while deciding an application filed for provisional release of the goods and in P. PANDITHURAI VERSUS THE JOINT COMMISSIONER OF CUSTOMS (ADJUDICATION) , O/O. THE COMMISSIONER OF CUSTOMS, TRICHY s[2020 (3) TMI 859 - MADRAS HIGH COURT], the Madras High Court observed that such discretion must be exercised in a manner known to law and that an opportunity of being heard is also required to be given. In the present case, a search had been carried out at the residential premises of the employees of M/s. Johnson Watch Co. Pvt. Ltd. on 29.10.2012 and also at its various showrooms and the residence of its Directors on 29.10.2012 and 30.10.2012. Details of the high-end wrist watches recovered from the residence of Pushpak Lakhani, Shikha Pahwa, Pankaj Lakhani, Purushottam Jajodia and the Directors and showrooms of M/s. Johnson Watch Co. Pvt. Ltd., have been mentioned in paragraphs 5 and 6 of this order. It is seen that while 95 high-end wrist watches were recovered from the appellant, about 6233 high-end wrist watches were recovered from M/s. Johnson Watch Co. Pvt. Ltd., 5 high-end wrist watches were recovered from Purushottam Jajodia and 16 high-end wrist watches were recovered from Pankaj Lakhani. The Principal Commissioner also committed an error in rejecting the application filed by the appellant for provisional release of the goods by holding that the seized goods were “prohibited goods” liable for confiscation under section 110(d) of the Customs Act. As noticed above, the watches of all other co-noticee were released by the Department and this issue has been raised by the Department only in the case of the appellant. Even while adjudicating the show cause notice issued to M/s. Johnson Watch Co. Pvt. Ltd., by order dated 27.05.2020, only a fine has been imposed under section 125(1) of the Customs Act and the goods have not been confiscated. The Delhi High Court had also in Its My Name held that both prohibited and non-prohibited goods can be released under section 110A of the Customs Act. The view taken by the Principal Commissioner for rejecting the application filed by the appellant for provisional release of the goods for the reason that a discretion is vested in the authority and since the subsequent show cause notice dated 27.10.2017, was adjudicated upon and the appellant was held liable to penalty, also suffers from an error - In the present case, the appellant had not only deposited a substantial amount of duty proposed in the show cause notice but had also made an offer to deposit the remaining amount under protest so that the goods could be released provisionally. It has also been found as the fact that the 6233 high- end wrist watches recovered from M/s. Johnson Watch Co. Pvt. Ltd. were released merely on the basis of an undertaking given by the Directors in 2012 without even moving any application for provisional release of the goods. Not only that, 5 high-end wrist watches recovered from Purushottam Jajodia and 16 high-end wrist watches recovered from Pankaj Lakhani were also released pursuant to the orders passed by the Supreme Court and it is only in the matter of the appellant that relates to 95 high-end wrist watches and ₹ 61 Lakhs in cash that the application for provisional release of the goods has been rejected. It would be appropriate to direct that, subject to the appellant depositing the remaining balance amount of duty proposed in the show cause notice within a period of 30 days from the date of this order, the goods and the cash seized from the appellant should be released within the next 30 days - Appeal allowed.
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