TMI Blog2013 (10) TMI 1261X X X X Extracts X X X X X X X X Extracts X X X X ..... e onerous and are hereby quashed. The respondents are directed to release the goods to the petitioners within a period of 2 weeks from the date of receipt of a certified copy of this order after ignoring the conditions imposed in clauses No.2 to 5. - Following decision of AMIT ENTERPRISES Versus UNION OF INDIA [2011 (5) TMI 375 - PUNJAB & HARYANA HIGH COURT] and Era International Versus UOI and Ors. [2011 (8) TMI 885 - Punjab and Haryana High Court], decided in favor of assessee. - CWP No.23685 of 2012 - - - Dated:- 20-5-2013 - Ajay Kumar Mittal And G. S. Sandhawalia,JJ. For the Petitioners : Mr. Rajiv Atma Ram, Sr. Advocate, with Mr.Jagmohan Bansal, Advocate For the Respondent : Mr. Kamal Sehgal, Advocate, Mr.Satish Aggarwala, Advocate and Mr.Sunish Bindlish, Advocate ORDER G. S. Sandhawalia J. 1. The present writ petition has been filed under Articles 226/227 of the Constitution of India for issuance of a writ of certiorari quashing the condition Nos.2 to 5 imposed in order dated 25.08.2012 (Annexure P-4) passed by respondent No.1 whereby the provisional release of goods was made subject to fulfilling the said conditions apart from condition Nos.1 and 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the goods on the following terms and conditions to M/s Century Knitters India Ltd, for 5 shipping bills having the total declared FOB value of RS. 2,45,67,276/- which has been redetermined as Rs.57,92,371/- on the basis of market enquiry:- 1. on execution of Bond equivalent to the declared FOB value of the goods covered under the said 5 shipping bills i.e. Rs.2,45,67,276/- 2. On furnishing of Bank Guarantee to the tune of the amount of excess drawback attempted to be availed i.e. Rs.17,08,516/- cover the personal penalty leviable under Section 114 of the Customs Act, 1962. Further, an amount of Rs.5,00,000/- as Bank Guarantee to cover leviable penalty under Section 114(AA) of the CA, 1962 3. on furnishing of Bank Guarantee to the tune of 25% of the determined FOB value i.e. Rs.14,48,093/- to cover the redemption fine 4. on submission of solvency certificate 5. on furnishing an undertaking that the identity and the quantity of the impugned goods will not be disputed and 6. on drawal of representative sample in the presence of DRI officers, if required by DRI. (B) The total declared FOB value of the 5 shipping bills filed by M/s Rajesh Hosiery Mills as per the seizure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y respondent No.1 and therefore, this Court would be reluctant to exercise the extraordinary writ jurisdiction. Reference was made to judgment of the Madras High Court in Nivram Pharma Pvt. Ltd. Vs. CEGAT 2006 (2005) ELT 9 and the Hon'ble Supreme Court in Tita Nagar Paper Mills Ltd. Vs. State of Orissa AIR 1983 SC 603 etc. The conditions imposed in the provisional release order was to be read in consonance with the provisions of Section 110A of the Act and there was no legally tenable ground on which the said conditions would be set aside. Reliance was also placed upon the judgment of this Court in CWP No.13914 of 2008 titled M/s Kundan Rice Mills Vs. Union of India decided on 15.12.2008 and T.L.Verma Co. Pvt. Ltd. Vs. Union of India 2009 (234) ELT 203. It was stated that the contents of the containers had been inspected and respondent No.1 had redetermined the value of the goods as Rs. 57,92,371/- on the basis of the market enquiry against the declared FOB value of Rs. 2,45,67,276/- in the case of petitioner No.1. In the case of petitioner No.2, it was re-determined as Rs. 55,47,623/- on the basis of market enquiry against the declared FOB value of Rs. 2,38,22,417/-. There was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d if the said conditions are imposed. Relevant paragraphs reads as under: 11. We find merit in the contention that requirement of giving a declaration that the petitioner will not challenge the value of the goods, in 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 10% of bank guarantee was upheld by this Court in T.L.Verma and M/s Kundan Rice Mills cannot be justification to impose such conditions in each and every case. In those cases, this Court was satisfied that the importers had adopted fraudulent tactics which, prima facie, justified opinion for confiscation of goods. The said judgments cannot apply to every case of detention. Mere al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of imposing bank guarantees and furnishing of similar declarations regarding the identity of goods were quashed. Similarly, the objections that this Court should not exercise its jurisdiction under Articles 226/227 of the Constitution of India on the ground that the appeal lay to the Commissioner was rejected with the observations that it was not an alternative and efficacious remedy. Similar view was also taken in M/s Om Udyog's case (Supra). 11. The respondents have not been able to show whether any liability had been fixed or an investigation has concluded in respect of the show cause notice which was issued on 25.10.20212 and a period of more than 7 months have since passed. It is also pertinent to mention here that in CWP No.10750 of 2012 decided on 14.02.2013, this Court, while partly allowing the writ petition regarding the returning of sum of Rs. 10 crores recovered from the Managing Director of the petitioner-Companies had directed that the sum of Rs. 8 crores be refunded within a period of 2 weeks and further allowed the revenue to retain the amount of Rs. 2 crores till 31.03.2014. The goods were seized on 01.05.2012 and a period of more than one year has expired. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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