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TMI Blog2011 (5) TMI 375X X X X Extracts X X X X X X X X Extracts X X X X ..... elting Steel Scrap' (HMSS) from South Africa under Open General Licence Scheme subject to Nil basic customs duty. The petitioner filed seven bills of entry for clearing the said goods in 31 containers on different dates in January 2011 but the custom authorities did not allow clearance on the ground that the material so imported was not scrap but re-rollable metal attracting 5% basic custom duty. The goods were seized under Section 110 of the Act. The goods were physically examined and opinion of Chartered Engineers was taken to the effect that a part of consignment contained moon cut pieces while the remaining was old rusty but not used pipes. The petitioner deposited the amount of duty as per valuation assessed by the said Chartered Engin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r on account of continued detention of goods. The said circular further provides that the imported goods should not be detained unless prohibited on simple valuation/classification disputes. Power of confiscation has to be exercised by a proper officer as defined under Section 2(34) of the Act i.e. the officer who is assigned those functions expressly. In Commissioner of Customs v. SayedAli, 2011 (265) E.L.T. 17, the Hon'ble Supreme Court held that the Proper Officer under Section 2(34) should be specifically authorized to act as such. Thus, the grievance of the petitioner is that action of the respondents in detaining the goods and continuing to detain the same was without jurisdiction and arbitrary. 4. The stand of the respondents i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was submitted that imposing of condition of furnishing of bank guarantee equal to 25% of the full market value of goods and further condition that the petitioner will not challenge the value of goods during declaration or prosecution were arbitrary conditions. In support of his submissions, reliance has been placed on the following judgments :- (i) Century Metal Recycling Pvt. Limited v. Union of India, 2009 (234) E.L.T. 234 (P & H); (ii) M/s. Bajrangbali Trading Company v. Union of India and Another, CWP No. 3786 of 2011 decided on 17-3-2011 (P & H); (iii) Bhoomi Sudltar Chemical Industries v. Joint Director, DRI, Ludhiana 2007 (213) E.L.T. 494 (P & H); (iv) Sonia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 11. We find merit in the contention that requirement of giving a declaration that the petitioner will not challenge the value of the goods, is unreasonable and arbitrary. The petitioner cannot be debarred from asserting its version as to the value and classification of goods. If such a condition is allowed to be imposed, the department can unilaterally allege any valuation and continue to keep the goods under detention unless the affected party agrees to withdraw the challenge to the valuation. This will amount to denial of justice. Similarly, requirement of furnishing bank guarantee equal to 25% of the full market value of the seized goods is also, in the facts and circumstances of the case, arbitrary. Mere fact that condition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nable procedure as held in Maneka Gandhi v. Union of India, AIR 1978 SC 597. Referring to this aspect, in a recent decision in District Registrar and Collector, Hyderabad and Another v. Canara Bank etc., AIR 2005, SC 186, it was observed :- "33. Intrusion into privacy may be by - (1) legislative provisions, (2) administrative/executive orders, and (3) judicial orders, the legislative intrusions must be tested on the touchstone of reasonableness as guaranteed by the Constitution and for that purpose the court can go into the proportionality of the intrusion vis-a-vis the purpose sought to be achieved. (2) So far as administrative or executive action is concerned, it has again to be reasonable having regard to the facts and circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... damental rights conferred under Article 19 which may be applicable in a given situation; and (iii) it must also be liable to be tested with reference to Article 14. As the test propounded by Article 14 pervades Article 21 as well, the law and procedure authorizing interference with personal liberty and right of privacy must also be right and just and fair and not arbitrary, fanciful or oppressive. If the procedure prescribed does not satisfy the requirement of Article 14 it would be no procedure at all within the meaning of Article 21." 14. Reasonableness being part of fundamental right under Article 14, doctrine of proportionality can be invoked so that unequals are not treated as equals. The exercise of discretion has to be proporti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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