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TMI Blog2011 (3) TMI 1271X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Senior Advocate with Mr. Amar Mithani, learned advocate for the petitioner and Mr. R.J. Oza, learned Senior Standing Counsel appearing on behalf of the respondents No. 2 to 5. 3. Assailing the seizure made vide seizure memo and panchnama both dated 7-2-1010, Mr. Joshi, learned counsel for the petitioner submitted that the seizure is not warranted under the facts and circumstances of the case. Referring to the provisions of Section 110 of the Customs Act, 1962 (the Act) it was submitted that under the said provision the proper officer is empowered to seize any goods liable to confiscation. Insofar as imported goods are concerned, the same can be confiscated if the same fall under any of the categories enumerated under Section 111 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resorting to seizing the same under the provisions of Section 110 of the Act. 4. On the other hand, Mr. R. J. Oza, learned Senior Standing Counsel appearing on behalf of the respondents No. 2 to 5 vehemently opposed the petition. Inviting attention to the Bill of Entry annexed with the affidavit-in-reply, it was submitted that the petitioner has claimed the benefit of exemption under the Duty Free Import Authorisation (DFIA) Scheme and has, accordingly, stated in the Bill of Entry that it is totally exempted from the liability to pay any duty. It was submitted that the said assertion in the Bill of Entry would amount to mis-declaration inasmuch as, the goods imported by the petitioner, viz. Beetle Nut/Areca Nut, do not fall under G-7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt orders in respect of the Bills of Entry filed by it, the respondents have finalized the assessment and have quantified the duty and as such, the petitioner is now liable to pay the duty under the said orders of final assessment, and if at all the petitioner is aggrieved by the final assessments, it is open to the petitioner to avail of statutory remedy available under the Act. It was also submitted that once the goods have been seized in exercise of powers under Section 110 of the Act, the remedy available to the petitioner is to make an application for provisional release of goods seized pending adjudication to the Commissioner of Customs under Section 110A of the Act. It was submitted that in the circumstances, at this stage, the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of Areca Nut, which according to the respondents is not covered by the DFIA licence, the petitioner has made a misdeclaration in the Bills of Entry submitted by it. 8. Thus, according to the respondents the claim of the petitioner that it is entitled to exemption from payment of customs duty under the DFIA licence in respect of the subject goods imported by it amounts to misdeclaration so as to fall within the ambit of clause (m) of Section 111 of the Act. In this regard, it may be pertinent to refer to the decision of the Supreme Court in the case of Northern Plastic Ltd. v. Collector of Customs & Central Excise, (1998) 6 SCC 443 = 1998 (101) E.L.T. 549 (S.C.), wherein, the Supreme Court has held that whether the assessee is e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r any other law for the time being in force, in respect of which the condition is not observed, would be liable to confiscation. In the facts of the present case, according to the respondents the subject goods are not exempt from customs duty, which is also borne out from the fact that the subject goods have been finally assessed by levying appropriate rate of duty applicable to such goods if they are not entitled to exemption under the DFIA licence. Thus, if the goods are not exempted goods, there would be no question of the goods being subject to any condition. The said provision would apply in a case where the goods are exempted subject to certain conditions and thereafter, there is non-observance of the said conditions. In the facts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll pay fifty per cent of the customs duty assessable under the orders of final assessment on the basis of non-applicability of DFIA Scheme and to the extent of remaining fifty per cent, the petitioner shall furnish a bank guarantee to be issued in favour of the President of India through the Commissioner of Customs, Kandla. The petitioner shall furnish Bonds to the extent of the value of the goods seized, which shall enure till final adjudication, if any, made by the authorities, failing which, the same shall stand discharged. (ii) The aforesaid payment, furnishing of bank guarantee and bonds shall be without prejudice to the rights and contentions of the petitioner and the same shall abide by further orders that may be p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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