TMI Blog2015 (8) TMI 1223X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer formed opinion that imported goods are liable to confiscation and invoked provisions of Section 110 – It is apparent that authorities have wrongly invoked provisions, Court cannot be mute spectator and still relegate parties to authorities to take decision and determine dispute – Therefore, court feels that action of authorities in seizing goods under Section 110 is illegal, improper and invalid and cannot be sustained in law –Accordingly order of seizure set aside – Since authorities have categorically stated that assessment has already been done, said authority shall allow clearance of goods if duty so assessed is paid by petitioner – Petition disposed of. - W.P. No. 11935 (W) of 2014 - - - Dated:- 14-11-2014 - Harish Tandon, J. Shri Anindya Mitra Bhaskar Sen, Senior Advocates, Moni Mohan Chandra and Debdut Mukherjee, Advocates, for the Petitioner. Shri R. Bhardwaj and Mrs. Santa Mitra, Advocates, for the Respondent. JUDGMENT The original relief claimed in the writ petition becomes obliterated because of the subsequent events as it stood proceeds on the basis that despite having filed bills of entry, the determination of the duty and the clearance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on record by way of supplementary affidavit. The Port Authorities were permitted to file the counter-affidavit to the supplementary affidavit wherein it is stated - a letter dated April 21, 2014 was issued by the petitioner showing their inability to pay the duty so assessed citing the financial stringency. In the said letter, the petitioner proposed to the authorities to keep the part of the cargo for a value of ₹ 32 crores and interest out of the total cargo valued at ₹ 360 crores as security towards the past duties. It is a specific stand of the Customs authority that upon receiving the said letter a bona fide impression is created over the evasion of the duty and the order of seizure is passed. It would be apt and relevant to quote the relevant portion of such statement from the counter-affidavit filed by the Port Authority which runs as follows :- After receiving the said letter the respondents had reasons to believe that there is an evasion of duty on the part of the petitioner company and therefore, the respondent authorities seized the goods on 13th May, 2014 in accordance with law which has been mentioned in the affidavit-in-opposition. 4. Indisputably ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase thereof it has to take recourse under Section 110A of the said Act. So far as the order of seizure is concerned, Mr. Bhardwaj submits that the Court in exercise of the power of judicial review should not interfere with such order but leave the dispute to be decided by the authority. 8. In support of his contentions Mr. Bhardwaj, relies upon the following judgments :- (1) 1991 (56) E.L.T. 705 (Mad.) - Madanlal Steel Industries Ltd. v. Union of India. (2) 1994 (72) E.L.T. 813 (S.C.) - J.K. Bardolia Mills v. M.L. Khunger, Deputy Collector. (3) 1996 (86) E.L.T. 460 (S.C.) - Union of India v. Jain Shudh Vanaspati Ltd. (4) 1996 (86) E.L.T. 28 (Cal.) - Bowreach Cotton Mills Co. Ltd. v. Commissioner of Customs, Calcutta. 9. Mr. Bhardwaj further informs this Court that the authorities after seizing the goods have informed the petitioner that they can take recourse of Section 110A of the Customs Act for provisional release and, therefore, the petitioner should approach the appropriate authority under the aforesaid provision. 10. In course of argument a question cropped up whether there was any circumstances envisaged the eventualities embodied within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endeavour has failed to find out whether these grounds can be brought within the ambit of the aforesaid clauses as relied upon by the Port Authorities. It is not a case made out in the opposition that the goods imported were exempted from duty provided the conditions attached thereto are fully observed not it is a case that the goods imported is prohibited under the Act or any other law for the time being inforce or a case of removal or attempt to remove from a customs area or a warehouse without the permission of the appropriate authority. 13. I have already indicated the stand taken in the counter-affidavit to the supplementary affidavit from which it does not appear that any such grounds have been narrated except that the proper officer has reason to believe that the petitioner attempted to evade the payment of duty. It is reasonably ascertained from the letter dated April 21, 2014. 14. There is another striking feature in the instant case. The aforesaid ground is taken at the Bar and which is absent in the pleadings filed by the Port Authorities. The only ground, which this Court can comprehend from the opposition is the attempt to evade the duty which does not, in my ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... February 24, 1971 allowed confiscation and imposed the penalty upon the appellant therein. The said order was carried in an appeal and ultimately on affirmation challenged under Article 226/227 of the Constitution. On dismissal of the writ petition, the matter went up to the Apex Court. A point was taken that after expiration of the statutory period, if a notice is given, the proceeding initiated thereupon is invalid and the Customs Authority cannot retain the goods. It was found during the argument that some of the provisions contained under Section 123 of the Act were satisfied and it cannot be said with certainty that the order of confiscation and seizure was bad. In the above perspective it is held :- Para 7. The conditions to be satisfied for application of the provisions of Section 123 of the Act are (a) the goods must be one to which Section 123 applies, (b) the goods are seized under the Act, and (c) the goods must be seized in the reasonable belief that they are smuggled. Para 8. It was not disputed before the Assistant Collector that Section 123 applied to the goods in dispute. Reasonableness of belief has to be judged in the light of the facts and circumstances of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... similar facts as in case of Union of India v. Jain Shudh Vanaspati Ltd., this Court in Bowreach Cotton Mills Co. Ltd. v. Commissioner of Customs, Calcutta reiterated the ratio laid down by the Supreme Court. 20. Had it been the case that the authorities have made out a case, which suggests the violation of any of the provisions of the Act inviting the confiscation and seizure, the Court would be slow and circumspect in interfering. The authorities says that on the basis of the letter dated April 21, 2014, the proper officer has reason to believe that the petitioner is evading the duty. At the time of argument it has been pointed out to this Court that because of the provisions contained in clauses (j) and (o) of Section 111 of the Act, the proper officer formed an opinion that the imported goods are liable to confiscation and invoked the provisions of Section 110 of the said Act. 21. As I have already indicated that none of such facts can be brought within the purview of the aforesaid clauses and from the pleadings of the parties it is apparent that the authorities have wrongly invoked the provisions, the Court cannot be a mute spectator and still relegate the parties to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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