TMI Blog2017 (5) TMI 1234X X X X Extracts X X X X X X X X Extracts X X X X ..... ondents Through: Mr. Aditya Singla, Senior standing counsel for R-1. Mr. Sanjeev Narula, Senior standing counsel with Mr. Abhishek Ghai, Advocate for R-2. O R D E R Dr. S. Muralidhar, J. 1. Writ Petition (Civil) No. 3965 of 2017 filed by the Petitioner, Mala Petrochemicals Polymers, of which Mr. Manish Jain is the partner, seeks the following reliefs: (a) Issue a writ order or direction in the nature of mandamus to the Respondent to provisionally release the goods imported against bill of entry No. 8911267 dated 16.03.2017 and seized vide seizure memo dated 21st April 2017; (b) Issue a writ order or direction in the nature of mandamus to the Respondent to provisionally release the goods seized at godown premises at 78/12 13, Ground Floor, Village Bakoli, Near Ganesh Dharam Kanta, Delhi-110036; and (c) Issue a writ order or direction in the nature of mandamus to the Respondent to release the goods Seized at godown premises at Khasra No. 43/9, Village Hamidpur, Near HMR. College, G.T. Kamal Road, New Delhi-110036; 2. The factual background is that the Petitioner is engaged in the business of import of chemicals. The Petitioner states that it had pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said goods i.e., the PVC Resin of Suspension Grade was liable to be confiscated under Section 111 (m) of the Customs Act, 1962 ( Act ). The seizure memo dated 21st April 2017 noted that the samples drawn from 20 containers were sent under Test Memo to the CRCL. The seizure memo states that Manish Jain categorically admitted to the fact of importing PVC Resin of Suspension grade by mis-declaring the same as Ammonium Sulphate Industrial grade and that the entire goods covered under Bill of Entry No. 8911267 dated 16th March 2017 is nothing but PVC Resin of Suspension grade. 6. The grievance of the Petitioner at the stage of filing W.P. (C) No. 3965 of 2017 was that the Respondents were not passing orders for provisional release of the goods against the live B/E or even the goods seized at the premises/godowns of the Petitioner. The said writ petition was first listed for hearing before this Court on 8th May 2017. Mr. Sanjeev Narula, learned Senior standing counsel for the Principal Commissioner of Customs while accepting notice on that date produced before the Court copy of an order dated 5th May 2017 passed by the Assistant Commissioner SIIB-Import granting provisional rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of this Court dated 18th January 2017 of this Court in Writ Petition (Civil) No. 477 of 2017 (G.B. International v. The Union of India). 9. It is pointed out by learned counsel for the Petitioner that it has been acknowledged by the Respondents themselves that even before the seizure memo was formally drawn up, the Petitioner had deposited an amount of ₹ 1,19,78,677 on 21st April 2017 towards differential amount of duty as regards the consignment imported against the live B/E. This was in addition to the customs duty of ₹ 15,42,525 paid immediately upon arrival of the goods. 10. Mr. Aditya Singla, learned Senior Standing counsel for the DRI, pointed out that during the pendency of the writ petition, on 17th May 2017, the DRI addressed a further letter to the Principal Commissioner of Customs (Import) on the subject of Investigation into import made by M/s. Mala Petro Chemicals Polymers and others . This was as a result of the examination of the goods seized from the godowns and premises of the Petitioner. Pursuant to the request for provisional release of those goods, the DRI has in the said letter estimated the total value of the seized goods to be as f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that neither the above decision nor any of the decisions cited by the Petitioner involved provisional release of 'misdeclared' goods. In this context, he referred to the decisions of other High Courts in Apollo Cranes Pvt. Ltd. v. Union of India 2012 (275) ELT 148 (Bom), Dhriti Enterprises v. Commissioner of Customs (Import) Chennai (supra), Sada Sukhi Electronic P Ltd. v. CC (Seaport-Import) 2014 (304) ELT 42 (Mad) and Malabar Diamond Gallery P Ltd. v. The Addl Director General DRI 2016 (341) ELT 65 and of this Court in Dilshad Khan v. Principal Commissioner of Customs (Import) [W.P. (C) Nos. 347 and 1070 of 2017]. 13. Mr. Narula defended the conditions imposed in the impugned provisional release order dated 5th May 2017 as regards the consignment imported under the live B/E by submitting that this was an admitted case of misdeclaration of goods which would, in all probability attract penalties under Sections 112, 114A and 114AA of the Act. The requirement of furnishing a BG for 30% of the differential duty was therefore to cover the penalty that could be imposed notwithstanding that the importer may have paid a substantial portion of the differential ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Act read with Regulation 2 of the aforesaid Regulations. In those circumstances, the conditions for provisional release were modified by this Court by permitting the Appellants to furnish a bond of 20% of the differential duty to the satisfaction of the Commissioner of Customs. The matter then travelled to the Supreme Court. The conditions for provisional lease were modified by directing that the goods be released on the Assessee furnishing a bank guarantee ( BG ) of 30% of the differential duty to the satisfaction of the Commissioner of Customs. 17. Navshakti Industries Private Limited v. Commissioner of Customs (supra) therefore did not involve 'mis-declared' goods. It involved goods that were being diverted for purposes other than what they were meant for. It requires to be noticed at this stage that mis-declared goods attract confiscation under Section 111 (m) of the Act and, where the circumstances so warrant, penalty provisions contained in Sections 112, 114 A and 114 AA of the Act. It appears from a careful scrutiny of many of the orders of this Court that they were cases other than that of mis-declared goods. 18. In Zest Aviation Private Limited v. U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was perhaps not acknowledged in many of the orders earlier passed by the Court. More importantly, none of these cases, as already noticed, actually dealt with the provisional release of goods that had been imported by misdeclaring them. 22. Ultimately, each case turns on its peculiar facts. There can never be a blanket rule that in all cases of misdeclaration 100% of the duty must be asked to be deposited or that if the importer is asked to do so then he cannot be asked to furnish a BG. For instance, in Malabar Diamond Gallery P Ltd. v. The Addl Dir General DRI (supra), the Madras High Court held that although the import of gold was not prohibited, if the import was in violation of the conditions attached to such import, could amount to smuggling and that a prayer for provisional release could be refused. The decision in Sada Sukhi Electronic P Ltd v CC (Seaport-Import) (supra) involved mis-declared goods and the conditions imposed were the deposit of 100% of the duty on the declared value, 50% of the differential duty, and personal bond for the remaining 50%. 23. The power under Section 110 A of the Act involves exercise of discretion. The scope of judicial review i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the differential duty. 28. Keeping in view all the above factors, the Court directs that as far as the live B/E is concerned, the order dated 5th May 2017 passed by the Assistant Commissioner of Customs should be modified by directing that the Petitioner will furnish BG for a sum equivalent to 15% of the differential duty of ₹ 1,22,09,999. The other conditions imposed in the said order of provisional release are left undisturbed. It is made clear that the sums deposited by the Petitioner are without prejudice to the rights and contentions of either party and will be subject to the final orders in the adjudication proceedings. 29. As far as the goods seized from the godown and premises are concerned, in view of the letter dated 17th May 2017 of the DRI to the Customs and in view of the fact that what has been deposited by the Petitioner is in excess of the value of the goods and differential duty, it is directed that: (i) not later ten days from today, the Customs officer concerned will issue an order of provisional release subject to the following conditions: (a) the Petitioner will furnish a bond equivalent to the value of the goods of ₹ 1.73 crores ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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