TMI Blog2012 (4) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... to account - The only reason for non releasing of the goods is that the petitioner has undervalued the goods at USD 400 per MT. Now the Directorate of Revenue Intelligence, Thoothukudi, on investigation found that the value of goods is USD 1058 per MT - the goods in question is not a prohibitory item under the provisions of the Act and having regard to the foregoing reasons and discussions and considering the circumstances of the case, provisional release of the goods is ordered with reasonable conditions. - W.P.(MD)No.1181 of 2012 - - - Dated:- 6-3-2012 - MR.JUSTICE V.DHANAPALAN, J. For petitioner ... Mr.A.K.Jayaraj For respondents ... Mr.R.Aravindan ORDER The petitioner has filed this writ petition for a Mandamus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Input Data Base, the actual value of the Slack Wax appears to be USD 1058 per MT, whereas the petitioner declared the value as USD 400 per MT. The respondents in the counter affidavit also suggested the petitioner to deposit the duty amount of Rs.6,14,323/- and Bank Guarantee for Rs.10.62 lakhs being 30% of Market Value of Rs.35.04 lakhs as determined by Directorate of Revenue Intelligence, Thoothukudi and bond in the form Appendix-V for the assessable value of Rs.24,02,043/-, keeping in view to safeguard the revenue of the Department. The respondents also stated that the investigation is yet to be completed, so also the adjudication proceedings by the department. 4. Heard Mr.A.K.Jayaraj, learned counsel for the petitioner and Mr.R.Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.70221, dated 19.08.2011 from M/s.Baykim Chemicals, Turkey and filed their Bill of Entry No.5526310 dated 21.12.2011 by declaring the value at the rate as USD 16,904.00 totally for 42.260 kilograms i.e. USD 0.400 per kilogram. The same was verified by the Directorate of Revenue Intelligence, Thoothukudi and on verification, it was found that the value of the imported cargo had been undervalued by the petitioner. Based on the documents recovered by the Directorate of Revenue Intelligence, Tuticorin from other importers as well as National Input Data Base, the actual value of the Slack Wax appears to be USD 1058 per MT, whereas the petitioner declared the value at USD 400 per MT. 8. In the above circumstances, to consider the request of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessed by the respondents is USD 1058 per MT. Therefore, the differential duty demand made by the respondents has to be paid by the petitioner. Further, the investigation is yet to be completed and the adjudication proceedings also to be done thereafter. When such is the situation, what is the condition for provisional release to be made. 10. In this regard, the learned counsel for the petitioner relied on various decisions of this Court and also the decision of the Honourable Supreme Court in the case of Commissioner of Customs V. Navshakti Industries Private Limited, (2011 (269) ELT A146(SC)) wherein the Supreme Court has held as follows:- "having considered the facts and circumstances of the case and also taking notice of the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for provisional loss shall be considered along with a reasonable condition. 12. Refuting the above submissions, the learned counsel for the respondents would contend that as far as the Supreme Court is concerned, the condition imposed for provisional release of the goods is only by a bank guarantee and in order to safeguard the interest of the department, the petitioner has to pay 30% of the deposits of the differential duty and 20% bank guarantee of the differential duty and for remaining 50%, he should furnish a bond. The learned counsel further submits that in case if the department succeeds in the adjudication proceedings, it is not possible for the department to recover any amount, if the goods are released. 13. It is seen that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from him in the proper form with such security and conditions as the Commissioner of Customs may require. 15. The only reason for non releasing of the goods is that the petitioner has undervalued the goods at USD 400 per MT. Now the Directorate of Revenue Intelligence, Thoothukudi, on investigation found that the value of goods is USD 1058 per MT. Therefore, the differential duty has to be paid even for the provisional release of the goods. The investigation has to be completed and thereafter, the adjudication has to be done for the assessment of the market value. Slack Wax cannot be kept for a long time and it will melt shortly. Therefore, for domestic consumption, the petitioner claimed for provisional release of the goods. In the light ..... X X X X Extracts X X X X X X X X Extracts X X X X
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