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TMI Blog2018 (3) TMI 1147X X X X Extracts X X X X X X X X Extracts X X X X ..... ne the cargo reported by the respondent, and sought to be cleared by the said bill of entry. 2. Material on record discloses that the respondent is engaged in the business of import and trading of mobile phones and its accessories, assorted china watches of unpopular brands, etc., and for conducting the said business, they have been issued with Importer Exporter Code No.0413038572 by Joint DGFT, Chennai. During the course of its business, the respondent had imported one consignment of mobile phone and accessories, viz. Hands free for mobile, Mobile phone pu pouch, Mobile Phone Screen guard, Mobile phone speaker, Mobile Phone cable, Mobile Phone blue-tooth, Mic, Mobile Phone plastic stand, Mobile phone selfie stick, Mobile phone spare parts (ringer) all of unpopular brand and assorted china watches (unpopular brand) from the overseas supplier M/s.Milton Raise Industries Ltd., Hongkong, vide their Invoice No.GZV-V17030019 dated 19.03.2017 and had given a credit period of 3 months from the payment of sale consideration to the overseas supplier. 3. Material on record further discloses that, after the goods arrived at the Chennai Sea Customs Port, a Bill of Entry bearing No.9670811 da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven instructions not to permit clearance of the goods without their consent and therefore, the order passed cannot be given effect to. 6. Before the writ court, it was the contention of the writ petitioner that when an investigation agency, viz., SIIB, Chennai had made thorough investigation and taken inventory of the goods and also submitted a report with the group concerned, based on which the Assistant Commissioner of Customs had taken a conscious decision to allow provisional release of the goods under Section 110-A of the Customs Act, exercising his statutory power conferred under the said provision and that too, after obtaining necessary prior approval/grant/permission from his higher authority, the writ petitioner was at a loss to know, as to what could be the reasons for the Directorate of Revenue Intelligence to withhold the consignment and legal impediment caused for the release of the goods, when a statutory order had been already passed allowing provisional release of the goods, which stands goods till date, as the said order has not been reviewed or appealed against or annulled or set aside in a manner known to law. 7. It was also the contention of the writ petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrage charges and the very purpose of enacting the provisions of Section 110-A of the Customs Act. 9. After hearing the arguments of both parties, and upon considering the facts and circumstances of the case, writ court passed the following order, on 10.08.2017. "3. The petitioner seeks for a direction upon the first respondent to implement the order, dated 16.06.2017, permitting provisional release of goods mentioned in the Bill of Entry No.9323907 dated 17.04.2017. The first respondent has imposed the following three conditions to be complied with for provisional release of the goods imported in the said Bill of Entry:- a) On payment of duty amount of Rs. 1512289/- on the re-determined value as per SIIB report b) Furnishing of a Bank Guarantee for 30% of the differential duty of Rs. 460000/- and c) Execution of a personal Bond for the total value of the goods i.e, for Rs. 5105681/- 4. The learned counsel for the petitioner submitted that the conditions imposed in Clause (b) and (c) above have been complied with. However, when the petitioner went to remit duty, as directed in Clause (a) , the first respondent informed that they have received intimation from the second r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification petition, on 23.11.2017, Writ court, has passed the following order: "4. The aforesaid Writ Petition was filed by the contempt petitioner for a direction upon the Department to implement its order, dated 16.06.2017, which granted provisional release of the goods imported by the petitioner, which were detained for investigation by SIIB. This Court heard the matter on merits and disposed of the Writ Petition, by an order, dated 10.08.2017. The operative portion of the said order reads as follows:- " 6. The submission made by the learned counsel for the second respondent could have been accepted if the first respondent has not exercised his statutory powers and granted provisional release. As long as the order passed by the first respondent remains intact, the second respondent cannot sit in judgment over the order of the first respondent. However, this Court is conscious of the fact that, because of the provisional release, the ongoing investigation should not be hampered. 7. In the light of the above, there will be a direction to the first respondent to provisionally release the goods in terms of the order, dated 16.06.2017, after accepting the payment of duty amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cover only the non confiscated goods and the Department is directed to comply with the order passed in W.P.No.19767 of 2017, dated 10.08.2017 within a period of 15 days from the date of receipt of a copy of this order. 8. In the light of the reasons assigned in this order for rejecting the modification Petition, the Contempt Petition stands dismissed. No costs. 9. The learned counsel for the writ petitioner/contempt petitioner submitted that the goods have been detained since 17.04.2017, and they have suffered high demurrages and the writ petitioner has filed an Application for waiver. Since the goods were detained for examination at the instance of SIIB, there should not be any difficulty for the Department to give a Demmurrage and Detention Certificate from the date of detention till the date of release." 11. Being aggrieved by the order of the writ court dated 10.08.2017 made in W.P. No.19767 of 2017, instant writ appeal has been filed on the grounds that the writ court has failed to appreciate the law that when there is no prohibition for seizure of the provisionally released goods under Section 110-A of the Customs Act, 1962, there was a flagrant violation of the statut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t; that Sathish had cheated and dragged him in to this case; that he had no connection with this case; that Sathish only knew the real owner of the said consignment; that the writ court failed to appreciate the law when both the IEC holder Smt.Usha Rani and the so called Authorised Signatory Shri.G.Sankaralingam in their voluntary statement disowned the above said consignment, there is no legal enforceable right for any provisional release of the goods seized; that the writ court ought to have seen that SIIB, Customs House, Chennai had only examined and seized a part consignment (small quantity of items). However, apart from the small quantity seized by SIIB, the remaining consignment had the huge number of IPR/BIS violated items (there were 1,11,413 watches and 68 power banks and other undeclared goods, in addition to certain other goods). Since the said consignment had the concealment of high value IPR violated goods (popular brand watches, ear phones etc.) BIS violated goods (Mobile phone batteries, chargers, cables etc.) and other undeclared goods, the DRI, CZU had seized the entire consignment including the part consignment seized by SIIB. However, DRI, CZU had taken over the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is most respectfully submitted that the assessable value of the total consignments, declared by the importer was Rs. 6,60,531/- whereas the DRI vide their letters dated 24/8/2017, 28/8/2017 and 31/8/2017 reported that estimated value of the goods imported after their re-examination, is more than Rs. 4.50 crore (more than 65 times the declared value). Therefore, the quantity of goods and the value ascertained after DRI examination for the subject goods is differing from the earlier reported data which was the basis for issuing provisional release order, dated 16/6/2017. DRI have further stated that they have no objection to the provisional release of the re-examined/re-inventorised goods which are not under investigation under the IPR (Imported goods) Enforcement Rules or the Electronic and Information Technology Goods (Requirement for Compulsory Registration) Regulations, 2012. The petitioners most respectfully state that it is also informed that the status of the canalised goods which requires IPT &BIS certification will not be known until the respective right holders revert with regard to the infringing nature of the goods under the Intellectual Property Rights (Imported G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the competent authority based on the SIIB report and upon imposing certain conditions for the said provisional release concerning the Bill of Entry No.9323907 dated 17.04.2017. 5. I submit that since the provisional release order passed by the 1st appellant was not implemented, the respondent filed writ petition W.P. No.19767/2017, before this Hon'ble Court and after hearing both sides the learned single Judge vide order dated 10.08.2017 directed the appellants herein to implement the provisional release order dated 16.06.2017 passed by the proper officer of customs. 6. I submit that since the order of the learned single Judge was not implemented for a long time I moved a contempt petition No.1788/2017, while the appellants herein also filed a modification petition in W.M.P. No.27347 of 2017 seeking modification of the order passed in the above writ petition. I state that the learned single Judge vide common order dated 23.11.2017 dismissed the modification petition filed by the appellants herein after observing and direction that the provisional release of the goods shall cover only the non confiscated goods and directed the department to comply with the order passed in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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