TMI Blog2018 (3) TMI 1147X X X X Extracts X X X X X X X X Extracts X X X X ..... ms, Chennai-IV, Customs House, Chennai, on payment of 30% of the differential duty, on the provisional assessed value of ₹ 2,80,46,001/- - Apart from the above, the respondent shall submit a personal bond on the total provisionally assessed value, as per the Annexure No.II. Appeal disposed off. - W.A. No.384 of 2018 C.M.P. No.3210 of 2018 - - - Dated:- 27-2-2018 - S. Manikumar And V. Bhavani Subbaroyan, JJ. For the Appellant : Mr.V.Sundareswaran For the Respondent : Mr.S.Baskaran JUDGMENT ( Delivered by S. Manikumar, J. ) Challenge in this writ appeal is to the order of the writ court dated 10.08.2017 made in W.P. No.19767 of 2017, by which, the writ court, disposed of the writ petition, directing the first respondent therein, namely, the first appellant herein, to provisionally release the goods in terms of the order dated 16.06.2017, after accepting the payment of duty, amounting to ₹ 15,12,289/- on the re-determined value as per SIIB report and on re-verifying the Bank Guarantee and Personal Bond filed by the respondent, within a period of 10 days from the date or receipt of a copy of that order. Writ court also directed that, it is open t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roper consideration of the representation, forwarded the file to the Assistant Commissioner of Customs. 5. Material on record further discloses that the Assistant Commissioner of Customs/first appellant, after considering their request for provisional release and the report of SIIB, was pleased to allow provisional release of the goods after obtaining the approval from his higher authority/competent authority, vide his order dated 16.06.2017 conveying that the provisional release of the goods is granted, subject to the condition that the importer should pay the duty amount of ₹ 15,12,289/- on the re-determined value of the goods as per SIIB report and furnish a bank guarantee for 30% of differential duty of ₹ 4,60,000/- and execution of a personal bond for the total value of the goods i.e. ₹ 51,05,681/-. In order to comply with provisional release order dated 16.06.2017, petitioner paid the differential duty amount of ₹ 4,60,000/- vide TR6 challan dated 17.06.2017 and also executed the bond as directed for the entire enhanced value of the goods i.e. ₹ 51,05,681/- and when arrangements were being made for the payment of ₹ 15,12,289/-, petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal release order in respect of payment of 30% of differential duty and execution of bond, while they are also ready to pay the duty amount of ₹ 15,12,289/- on proper approval being given by the group concerned. But to the shock and dismay of the petitioner, the Directorate of Revenue Intelligence, so far had not assigned any reasons nor have communicated to the petitioner the reasons for the detention and for the non-release of the cargo albeit provisionally, which is highly improper and unbecoming on the part of the Directorate of Revenue Intelligence officials. 8. It was the further contention of the petitioner that the action of the officials of the Directorate of Revenue Intelligence in creating a stumbling block from implementing the provisional release of the goods under the statutory order passed by the 1st respondent passed in terms of Section 110-A of the Customs Act and not allowing the clearance of the subject goods for such a long time, is clearly opposed to the Customs Law, besides being in utter defiance of the specific instructions issued by the Central Board of Excise Customs, New Delhi communicated vide Circular bearing No.42/2001-Cus dated 31.07.2001 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 amounting to ₹ 1512289/- on the re-determined value as per SIIB report and on re-verifying the Bank Guarantee and Personal Bond filed by the petitioner, within a period of 10 days from the date of receipt of a copy of this order. By then, it is open to the second respondent to examine the cargo imported by the petitioner, which is sought to be cleared by the said Bill of Entry. The writ petition stands disposed of accordingly. No costs. 10. As there was no response to the order dated 10.08.2017, made in W.P. No.19767 of 2017 by the Assistant Commissioner of Customs (Gr.7H), the respondent/writ petitioner, has filed a contempt petition in Contempt Petition No.1788 of 2017 for the willful disobedience of the order passed by the writ court in W.P. No.19767 of 2017 dated 10.08.2017. The Assistant Commissioner of Customs (Gr.7H), Customs House, has filed a petition in W.M.P. No.27347 of 2017 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpermissible by way of modification Petition. This is sufficient to dismiss the modification Petition. However, considering the fact that, the Department is ready and willing to comply with the provisional release of the goods, in terms of its order, dated 16.06.2017, and only seeks for clarification that, such of those goods, which have not been cleared by the SIIB for IPR violations or otherwise, should not be directed to be released, and accordingly, the learned counsel appearing for the writ petitioner would submit that, only such of the goods, which have been cleared by the SIIB may be considered for release and the writ petitioner does not seek for release of the goods, which have been detained for IPR violation or otherwise, in fact, the order passed by the Assistant Commissioner of Customs, viz., the order of provisional release, dated 16.06.2017 is only in respect of the non confiscated goods, this Court is of the view that, by release of such goods, the Department need not have any apprehension that, it would hamper the investigation or the ultimate result of the adjudication, if already commenced. 7. For the reasons stated above, the prayer, as sought for by the De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -in-law saying that Shri Aftab Alam has sought help from Shri Sankaralingam for filing the said writ petition in High Court; that however, she had not given any authorisation to Shri Sankaralingam or any other person; that since the goods imported by Shri Aftab Alam by using the IEC of M/s.Kanishka Enterprises had been seized by DRI officers, Shri Aftab Alam and Shri Sathish through Shri Sankaralingam might have been filed the said writ petition before the court for release of goods without her knowledge/permission; that she had just came to know and understood about this fact; that otherwise there was no link between M/s.Kanishka Enterprises, the goods imported by using the said IEC and Shri.Sankaralingam, that Shri Aftab Alam was the real owner of the above said goods; that the writ court failed to appreciate that Shri.G.Sankaralingam, claimed to be the Authorised Signatory of M/s.Kanishka Enterprises, in his voluntary statement under Section 108 of the Customs Act, 1962, had inter alia stated that he disowned the consignment imported in the name of her IEC M/s.Kanishka Enterprises under BE No.9323907 dated 17.04.2017; that as directed by Shri.Sathish, son-in-law of Smt.Usha Rani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... W.M.P.No.27347 of 2017 in W.P.No.19767 of 2017 and Contempt Petition No.1788 of 2017, dated 23/11/2017, have not been challenged. 2. At para Nos.7 and 8 of the affidavit filed by both the Assistant Commissioner of Customs (Gr-7H), Chennai and the Additional Director, Director of Revenue Intelligence, Chennai, petitioners therein, in W.M.P.No.27347 of 2017 in W.P.No.19767 of 2017 have averred as follows:- The petitioners most respectfully states that based on specific intelligence, and along with investigation of other 26 containers, the container number TCNU 7018218, filed vide Bill of Entry No.9323907 dated 17/4/2017 was also re-examined and re-inventorised as permitted by the Hon'ble High Court. On re-examination, it was found that as against the Importers declaration, the DRI (second petitioner) vide their letters dated 24/8/2017, 28/8/2017 and 31/8/2017 reported that there appears to be a copyright vioaltion in 33074 watches out of 1,11,413 watches inventorised by DRI as against 7915 watches out of only 77,100 watches which was reported earlier. There is an increase in the quantity of goods which appear to have violated copyrights and they appear to be prohibited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. Post on 22/2/2018. 15. On 22.02.2018, the first respondent M/s.Kanishka Enterprises, represented by G.Shankaralingam, has filed an affidavit of undertaking. The same reads thus: I, G.Shankaralingam, son of Mr.Ganesan, aged about 36 years, having my office at M/s.Kanishka Enterprises, 48/87, Linghi Chetty Street, Mannadi, Chennai - 600 001, do hereby solemnly affirm and sincerely state as under: 1. I state that I am the Authorised Signatory of the respondent proprietorship concern and as such I am well acquainted with the facts and circumstances of the case and I am competent to swear to this affidavit as I have been authorised to do so. 2. I submit that the appellants herein have preferred the above writ appeal in W.A. No.384 of 2018, challenging the order passed by the learned single Judge in W.P. No.19767/2017 dated 10.08.2017 and the respondent herein had entered his appearance by filing caveat. 3. I submit that the above writ appeal came up for admission before this Hon'ble Court on 20.02.2018 and after hearing the arguments of both sides this Hon'ble Court had directed the respondent herein to file an affidavit and accordingly the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, and covered under the impugned Bill of Entry No.9323907 dated 17.04.2017 till the adjudication of the matter pertaining to the said goods by the proper officer of customs/adjudicating authority without prejudice to my rights to contest the said report of the DRI before the appropriate officer and the adjudicating authority and in the manner known to law. I submit that this Hon'ble Court may be pleased to take the above contents of my sworn affidavit on record and pass appropriate orders as deemed fit and proper in the facts and circumstances of the case and thus render justice. 16. Details of the Revenue Investigation disputes, value arrived at is given in Annexure II, dated 14.09.2017, notwithstanding the inter se dispute, subject matter of adjudication of the Show Cause Notice dated 25.01.2018. 17. Without going into the rival submissions, with the consent of the learned counsel appearing for both the parties, there shall be a provisional release of goods, mentioned in Annexure No.II, dated 14.09.2017 of the Deputy Director, Government of India, Ministry of Finance, Department of Revenue, Directorate of Revenue Intelligence Nodal Unit, Chennai, addressed to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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