TMI Blog2011 (12) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... 24 (a) has been issued. In view of the above, the writ Petition is allowed and the respondents are directed to issue a notice, and accordingly frame an order of assessment after having replies from petitioner. In the meantime, the respondents are directed to release the goods within a week of receipt a copy of this order, upon the petitioner executing personal bonds of all the partners. See Amit Enterprises vs. Union of India (2011 - TMI - 206680 - Punjab & Haryana High Court). – Decided in favor of petitioner - WP (MD) No.542 of 2011 - - - Dated:- 7-12-2011 - V. Ramasubramanian, J. For Appellant: Mr. Joseph Prabhakar, Advocate For Respondent: Mr. R Aravindan, Standing Counsel JUDGEMENT The petitioner has come up with the above writ petition, seeking a Mandamus, directing the second respondent to assess the goods covered by the Bill of entry Nos. 2363919, 2366129 and 2367779 respectively dated 25.11.2010, 26.11.2010 and 26.11.2010. 2. Heard Mr. Joseph Prabakar, learned counsel for the petitioner Mr. R.Aravindan, learned Standing Counsel for the respondents. 3. The petitioner imported three consignments of Silk Fabric in 440 cartons for a total value of US$ 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods are still lying uncleared and the writ petition itself has come up for final hearing. 7. When the petitioner came up with the writ petition in January 2011, within two months of the goods arriving at the Port, the only prayer that he could contemplate was to direct the respondents to complete the assessment and also to direct them to release the goods in the meantime. Therefore, the primary contention taken in the writ petition, as it was originally filed, was that since the goods are neither prohibited nor banned items, the detention of the goods by the respondents was unlawful. The petitioner also relied upon the Circular of the CBEC bearing No.22/2004-Cus., dated 3.3.2004, which stipulates that a consignment should not be held up, unless its import or clearance is totally prohibited or banned. Since there was no dispute about the fact that the goods in Question were neither banned nor prohibited and also since there was no dispute about the value declared by the petitioner, the focus of the petitioner in the writ petition, as it was originally filed, was only to direct the respondents to complete the assessment and to release the goods. 8. The respondents filed a counte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... furnished as aforesaid. But according to the learned counsel for the petitioner, despite his consent at the interlocutory stage, the petitioner is unable to furnish bank guarantee to have the goods cleared. Therefore, the only dispute today is as to whether the goods can be allowed to be cleared without requiring the petitioner to furnish bank guarantee or not. 11. It is the contention of the learned counsel for the petitioner that the position as on date is different from what it was on 9.3.2011 when he agreed to furnish bank guarantee and get the goods cleared. According to the learned counsel for the petitioner, the respondents have today lost the legal authority to detain the goods, any further, due to the efflux of time prescribed by the Statute. Consequently, the petitioner is entitled to take away his goods. 12. In support of the above contentions, the learned counsel for the petitioner relied upon Section 110 (2) of the Customs Act, the Circular of CBEC dated 2.3.2004 and a few decisions. Let me take them up for consideration now. 13. Section 110 of the Customs Act, 1962, deals with seizure of goods. Under sub-section (1), the proper Officer is entitled to seize good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... safeguard revenue (including possible fine and penalty). In case where it is decided to detain the consignment action should be taken to shift the same to a Customs Warehouse under Section 49 of the Customs Act, 1962 (Board's Circular No.84/95-Cus., dated 25.7.1995 may be referred to). 16. Regulation 2 of the Customs (Provisional Duty Assessment) Regulations 1963, also prescribes the procedure for making a provisional assessment, in case the proper Officer is unable to make a final assessment. It reads as follows:- 2. Conditions for allowing provisional assessment.-- Where the proper Officer on account of any of the grounds specified in sub-section (1) of Section 18 of the Customs Act, 1962 (52 of 1962), is not able to make a final assessment of the duty on the imported goods or the export goods, as the case may be, he shall make an estimate of the duty that is most likely to be levied hereinafter referred to as the provisional duty. If the importer or the exporter, as the case may be, executes a bond in an amount equal to the difference between the duty that may be finally assessed and the provisional duty and deposits with the proper Officer such sum not exceeding twen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been extended upto 25/26.11.2011. But we are in December 2011. Till date no notice under Section 124 (a) has been issued. 21. The petitioner himself gave a wake up call, to this effect, by filing a reply to the counter, way back in June 2011 in MP.No.3 of 2011. But the respondents did not wake up from their slumber. Therefore, the respondents have become obliged to release the goods in terms of Section 110(2). 22. The only reason stated by the respondents for not issuing a notice under Section 124(a) for the past more than one year, is that the petitioner failed to furnish two documents called for by them. The petitioner has produced proof to show that he had in fact furnished those documents. Even assuming without admitting that such documents were not furnished by the petitioner, the respondents were not left without a remedy. For issuing a notice under Section 124 (a), there was no necessity for insisting upon the production of those two documents. At any rate, there was no prohibition for the respondents to draw adverse inference, when the documents called for were not produced. The Act empowers the proper Officer to proceed to complete the assessment on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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