9911796707
TMI Blog2011 (12) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner was subjected to a search by the Department of Revenue Intelligence, Bangalore on 8.11.2010. A mahazar was drawn on 8.11.2010 and summons were issued. The partners of the petitioner appeared for an enquiry on January 3 rd and 4 th , 2011 before the Department of Revenue Intelligence at Tuticorin and their statements were recorded. Ever since then the goods are lying under the custody of the respondents and no order of assessment has so far been passed. Therefore, the petitioner has come up with the above writ petition. 5. The writ petition was filed on 11.1.2011 and it was moved for admission on 12.1.2011. At that time, the Senior Standing Counsel for the respondents took notice and sought time. The case was adjourned thereafter, from time to time. On 9.3.2011, the petitioner insisted for an interim direction to direct the second respondent to provisionally release the goods, as the material was lying from November 2010. At that time, it was pointed out by the Standing Counsel for the respondents that though the goods appeared to have been imported from Malaysia, the origin of the goods was suspected to be China and that therefore, there was a likelihood of Anti Dumping Duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and hence the Anti Dumping Duty worked out to Rs.1,79,31,926/-; (iii) that the cartons as well as the fabrics did not contain any marking about the description, brand or manufacturer's name; (iv) that the partner of the petitioner admitted that he had no direct contact with the Malaysian supplier, but ordered the fabric from a person by name Jerry Yuan of China; (v) that the petitioner could not furnish either K1/K2 Certificate or evidence for payment of money to the Malaysian party; (vi) that since the Anti Dumping Duty payable is very high, the goods had to be detained; and (vii) that the goods are now kept only in CWC CFS Bonded Warehouse and hence the petitioner is not incurring any demurrage and that therefore the writ petition deserved to be dismissed. 9. From the averments contained in the affidavit and the counter affidavit filed by the respondents, it is clear that there is no difficulty about granting the prayer of the petitioner for a Mandamus, directing the second respondent to complete the assessment within a time frame. According to the learned Standing Counsel for the respondents, the only impediment for completing the assessment is the non-production of two documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perishable or hazardous nature, then the Government may order their disposal, by following the procedure. But sub-section (2) and the proviso thereunder of Section 110 of the Act, prescribes a period of limitation for the proper Officer to take action and for the return of the goods if no action is taken within the period prescribed. They read as follows:- "(2) Where any goods are seized under sub-section (1) and no notice in respect thereof is given under clause (a) of Section 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized; Provided that the aforesaid period of six months may, on sufficient cause being shown, be extended by the Commissioner of Customs for a period not exceeding six months." 15. The object of Section 110(2) is to ensure that the imported goods are not detained for a longtime, causing not only a dent in the finances of the importer, but also causing congestion at Ports and Warehouses. This is seen from the Circular No.22/2004-Cus., dated 3.3.2004 issued by the Department. It reads as follows:- "I am directed to say that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Haryana High Court considered the question as to whether the detention of goods for a period of more than two months can be taken to be justified or not. After looking at Sections 17, 18, 47 and 110 of the Customs Act, and the decision of the Supreme Court in Mapsa Tapes (2006 (201) ELT 7) , the Division Bench of the Punjab High Court held that non-clearance of goods seriously affects the rights of lawful importer and that no authority can plead unlimited power of non-clearance, on account of its own incompetence. 18. Again in Amit Enterprises vs. Union of India (2011 (269) ELT 314 (P&H), the Division Bench of the Punjab and Haryana High Court reiterated that the power of detention is a drastic power and that its exercise has to be hedged by safeguards to check its abuse. The Court also pointed out that the authority exercising such power must strictly justify the same. 19. Similarly, it was held by the Calcutta High Court in S.J. Fabrics Pvt. Ltd. vs. Union of India (2011 TIOL 532) , that consignments cannot be held indefinitely without any valid order of detention under Section 110. The Court also pointed out that if no show cause notice under Section 124 (a) is issued within 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
