TMI Blog2013 (9) TMI 1000X X X X Extracts X X X X X X X X Extracts X X X X ..... available (though disputed by the applicants) are on different footing than the goods where MRPs are not available and the department is only making an estimate. Further, asking bank guarantee for RF/penalty in the facts and circumstances of the case is harsh. - Decided partly in favour of assessee. - C/88140-88141/2013-Mum - Final Order Nos. A/1764-1765/2013/WZB/C-I(CSTB) - Dated:- 24-9-2013 - Shri S.S. Kang, Vice-President and P.K. Jain, Member (T) Shri S.N. Kantawala with A.K. Prabhakar, Advocates, for the Appellant. Shri K.S. Mishra, Addl. Comm. (AR), for the Respondent. ORDER The facts of the two cases are that based upon intelligence, DRI officials detained the consignments of the two applicants. The applicants were importing ORKIA and HOYA brand rechargeable torches, rechargeable lanterns, emergency LED lights, rechargeable LED lamps, etc. According to the DRI officials, investigations have revealed that ORKIA and HOYA brands are sold at much higher prices than the declared value/MRP. It was also revealed that the goods are being supplied by K.S. Group (H.K) Ltd., Hong Kong, a company controlled by Shri Manoj Meghraj Jain and Shri Mitesh Meghraj J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e conditions to be very very harsh amounting to negating the release under Section 110A. 2. It is seen that the said order of the Commissioner of Customs has been passed under Section 110A of the Customs Act. There have been issues whether an appeal against the order passed under Section 110A of the Customs Act is maintainable before this Tribunal or not. In fact, there has been difference of opinion between the Members of the Tribunal and the brother Member of the Tribunal, who has heard the present case, in one of the cases has taken a view that such an appeal is not maintainable. However, we find that the Revenue has been taking a contrary stand before the various Hon ble High Courts. In the case of Shiv Mahal Textiles Pvt. Ltd. v. DGRI in Civil Writ Petition No. 4946/2012 before the Hon ble High Court of Judicature for Rajasthan at Jodhpur, the Revenue pleaded that the petitioner can file an appeal against the order passed under Section 110A of the Customs Act before the Tribunal under Section 129A of the Customs Act and the writ petition should be dismissed. The Hon ble High Court of Rajasthan in the said case directed the petitioner to file an appeal before the appellate a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rameters for exercise of powers therein and under the circumstances, the only option available is to fall back on Customs (Provisional Duty Assessment) Regulations, 1963. He further stated that the said decision of the Hon ble Delhi High Court has been reaffirmed by the Hon ble Supreme Court as reported in 2011 (269) E.L.T. A146 (S.C.). The learned counsel further submitted that the said decision of the Hon ble Delhi High Court has further been followed in the case of Zest Aviation Pvt. Ltd. v. UOI reported in 2013-TIOL-132-HC-DEL-CUS = 2013 (289) E.L.T. 243 (Del.). The learned counsel submitted that in view of the said decisions of the Hon ble High Courts and the Hon ble Supreme Court, it was incumbent on the part of the Commissioner to permit provisional clearance asking for 20% of the provisional duty. 4. The learned Advocate also submitted that alternatively the department can keep 10% of the goods as security and release the 90% of the goods. He further argued that the MRP of the 10% of the goods as calculated by the department will far exceed the duty liability (as estimated by Revenue) on the applicants. He also stated that in past in many cases, the department and the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d/halted their operations. It is not possible to pay any amount without defreezing the same. 7. We have considered the rival submissions. We find from the seizure memo that the DRI have got the MRP details in respect of only seven items, namely, OK-5541, OK-5552, OK-119CC, OK-64CC, OK-640CC, OK-6464 and OK-5535. In respect of the remaining items, the Revenue is not having any MRP but have estimated the same as five times the declared MRP by the appellants and for the differential duty, bond and bank guarantee have been demanded on the basis of the said estimated MRPs. We also observe from the details of the seizure memo that majority of items imported are not covered by the said seven items. In view of this position, we are of the view that asking 100% in cash/bank guarantee for the differential duty based upon purely an estimation basis in the facts of the present case is not correct. We also find from the order of the Commissioner that the department has adopted two different criteria in respect of the goods which have been assessed but not cleared so far and in respect of the goods which are yet to be assessed. In our view, the conditions in both the situations should be the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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