TMI Blog2016 (7) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... fore unsustainable in law. Although the Petitioner may be justified in insisting on unconditional release of the goods in question, considering that the Respondents intend filing an appeal against the said judgment and the Petitioner has by way of a demurer agreed to furnish a bond for 100% of the differential duty and deposit 20% of the provisional duty for the provisional release of the goods, the Court considers it appropriate to modify the impugned order dated 8th June 2016 only to the extent of deleting the condition that the Petitioner should additionally deposit or furnish a BG for 50% of the provisional duty. - Decided partly in favor of petitioner. - W. P. (C) 5368/2016 & CM APPL 22387/2016 - - - Dated:- 8-7-2016 - S. Muralidhar And Ashutosh Kumar, JJ. For the Petitioner : Mr. Tarun Gulati with Mr. Kishore Kunal, Mr. Manish Rastogi, Mr. Shashi Mathews and Mr. Rony O. John, Advocates For the Respondents : Mr. Sanjeev Narula, CGSC with Mr. Ajay Kalra, Advocate for R-1, 2, 3,4 6. Ms. Pooja Bhaskar, Advocate for Mr. Satish Aggarwala, Senior standing counsel ORDER 1. This petition was originally listed on 7th July 2016, which was declared a holiday on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsistent with the judgment of this Court. 4. At the first hearing of this petition on 1st June 2016 the Court was informed by Mr. Satish Kumar, learned counsel for the Customs, that they were contemplating to file an appeal in the Supreme Court against the above judgment dated 26th April 2016 of this Court. The Court then observed in its order that while that is a possible course of action for the Customs Department to take, the fact remains that as of date, it is incumbent on Respondent No. 2 to process the requests of the Petitioner for release of the imported consignments in accordance with the law as explained by this Court in its judgment dated 26th April 2016. Today, Mr. Sanjeev Narula, learned counsel for the Customs, informs the Court that an appeal is yet to be filed in the Supreme Court. 5. This Court in its order dated 1st June 2016 issued the following specific directions: 5. It is, therefore, directed that Respondent No. 2 will pass appropriate orders forthwith on the requests of the Petitioner for release of the consignment of gold jewellery imported by it under B/E No. 3970620 dated 20th January 2016 and B/E No. 4138435 dated 3rd February 2016 and report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts. 10. A preliminary objection has been raised by Mr. Sanjeev Narula that the impugned communication/order dated 8th June 2016 is appealable before the Commissioner of Customs (Appeals) and, therefore, this Court should not entertain the present writ petition. 11. As far as the above preliminary objection is concerned, this Court finds that the legal issue involved in the present petition has already been elaborately discussed by this Court in its judgment dated 26th April 2016. Specific directions were also issued. All that was required to be done was for the Respondents to implement the said directions. The Court instead finds that the impugned communication/order dated 8th June 2016 has failed to comply with the said directions in letter and spirit. Despite the goods having been imported more than five months ago, they have still not been released, even on provisional basis. The Court is therefore of the view that relegating the Petitioner at this stage to the alternative remedy of a statutory available would further delay the matter and multiply litigation. The preliminary objection is therefore overruled. 12. On merits, reliance was paced by Mr. Narula on a collecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he entire differential duty appears to be contrary to Regulation 2 (2). The Court is unable to accept the plea of Mr Dubey that the above Circular emerges from the Regulation 4 and is intended to adequately secure the Revenue and ensure uniformity of provisional assessments across all ports. The said Circular does not leave the issue of what conditions should be imposed for provisional assessment to the concerned customs officer. It requires the officer to demand 100% bank guarantee even in respect of those B/Es which have been provisionally assessed under Section 18 of the Act. It certainly is contrary to proviso (a) to Section 151 A inasmuch it dictates to the customs officer in what manner he should complete a provisional assessment. The consequent impugned letter dated 22nd January 2016 came to be issued to M/s. J.B. Overseas only on the basis of the said Circular. 56. The Court, therefore, holds that the impugned Circulars dated 6th October 2015 and 20th January 2016 are ultra vires Section 151 A of the Act and unsustainable in law. 14. It is sought to be urged by Mr. Narula that in requiring the Petitioner to furnish, in addition to the bond and deposit of 20% of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the provisional duty in terms of Regulation 4 of the CPDA Regulations is without reasons and therefore unsustainable in law. 18. Even otherwise, there appears to be no legal justification for insisting on the Petitioner furnishing as security a BG for 50% of the provisional duty. The power under Regulation 4 of the CPDA Regulations is a discretionary one and has to be exercised for valid reasons, where there is a real apprehension of non-compliance with the requirements for availing the exemption. It is not a power that can be exercised mechanically. In the context of the conditions imposed for provisional release of imported goods under the CPDA Regulations, the Supreme Court in Commissioner of Customs v. Navshakti Industries Pvt. Ltd. 2011 (269) ELT A146 (SC) modified this Court's order and permitted provisional release on the importer furnishing a BG for 30% of the differential duty. In Zest Aviation Pvt. Ltd. v. Union of India 2013 (289) ELT 243 (Del), this Court modified the conditions imposed for provisional release of imported aircraft by requiring the importer to furnish a bond for 100% of the value of the aircraft and a BG for 30% of the differential duty. This wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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