TMI Blog2018 (7) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal allowed in part. - Appeal No. C/10865-10872/2018-DB - Final Order No. A/ 11292-11299 /2018 - Dated:- 2-7-2018 - Hon ble Mr. Ramesh Nair, Member ( Judicial ) And Hon ble Mr. Raju, Member ( Technical ) For the Appellant: Shri. G. K. Sarkar ( Advocate ) For the Respondent: Shri J. Nagori ( A. R. ) ORDER Per: Raju These appeals have been filed by various importers who had purchased the goods from a unit in the SEZ. DRI seized the goods on the charges of under valuation. The modus operandi alleged by the DRI in the follow four cases Bhuria Overseas (IEC 3314003901) Rohtak M/s Radha Trading India (IEC 0503036358), Delhi M/s Sidhi Vinayak Importers (IEC 3313006426)m Rohtak M/s Milestone Eximp Pvt. Ltd. (IEC 0398002941), Mumbai is appearing in seizure memo as follows: 3. Whereas, M/s Zip Zap Exim Pvt. Ltd. (hereinafter referred to as ZZEPL), Plot No. 397/A3-IV, Sector-1, Special Economic Zone, Kandla, Kutch, Gujarat, have imported goods viz, Polyster Knitted Fabrics from various suppliers of China, in their unit in KASEZ by misdeclaring the rate of the said goods around USD 1.60/Kg (CIF Mundra) on behalf of their domestic buyers/ a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said goods, on behalf of their domestic buyers/actual importers. After importing these goods in KASEZ, ZZEPL, as detailed in Annexure A to this seizure memo , have filed DAT bills entry on behalf of four buyers importers and the same were assessed by Customs KASEZ ZZEPL have cleared all the said goods in lieu of sales proceeds in Indian Rupees. The said four domestic buyers importers are (i) M/s Pride India Enterprise (IEC-AAIFP9203A), (ii) M/s Jai Lighting Audio Equipment Co. (IEC-0510056717) (iii) M/s Daiwik enterprise (IEC- 0516952030) and (iv) V K Ventures (IEC-0516932713). Further, DTA Bills of Entry, in respect of said electrical goods as detailed in Annexure B to this seizure memo, imported by M/s ZZEPL, KASEZ for their DTA unit were not filed. 4. From the evidences recovered during the searches conducted at various premises of M/s ZZEPL and various domestic buyers/actual importers and from the statement of various persons involved, it surfaced that all the said imports have been done by ZZEPL on behalf of the said domestic buyers/actual importers/its own DTA unit. Under the said arrangement, the said goods were to be first imported by M/s Zip Zap Exim Pvt Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject to the following conditions : (a) the petitioner will furnish a bond equivalent to the value of the goods of ₹ 1.73 crores (approximately); (b) the petitioner will furnish an undertaking that it will not contest the identity of the provisionally released goods; (c) Of the sums deposited by the petitioner, the differential duty of ₹ 61.97 lakhs and a sum equivalent to 15% of the said differential duty shall be retained and the balance shall be returned forthwith to the petitioner. (ii) 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. He also relied on the decision of Hon ble Delhi High Court in case of Dilshad Khan in Writ Petition No. 1070/2017 wherein it was held that the rights of the appellant for relief under Section 28(5) and (6) of the Customs Act, 1962 are preserved. He argued that under the said Section also the appellants are entitled to relief from all proceedings if they pay the entire duty along with interest and 15%. 2.1 He also relied on the decision of Tribunal in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar No. 35/2017-CUS dated 16.08.2017, a lenient view should be taken in cases involving under valuation. It is to be noted that the said Circular records as follows: para 3 4 of circular. 3. In this context, attention is invited to the Judgment dated 28.07.2016 of the Hon ble Madras High Court in Writ Appeal No. 377 of 2016 in the case of Malabar Diamond Gallery Pvt. Ltd. vs Additional Director General, DRI, Chennai Ors. wherein the Hon ble Court has given sufficient discretion to the adjudicating authority to deny provisional release of goods in any case where the goods are smuggled or import is treated as illegal and in violation of the statutory provisions. In terms of the said Judgment, by specifying the relevance and reason, the adjudicating authority may deny provisional release of any goods which are liable to confiscation under Section 11 l or Section 113 as they would fall under the definition of prohibited goods, in terms of Section 2(33) of the Customs Act, 1962. 4. In the above context, attention is also invited to the common order dated 19.05.2017 of the Hon ble Delhi High Court in W.P.(C) No. 3965/2017 in the case of Mala Petrochemical Polymers v/s The Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lenient view in imposing the condition of provisional release cannot be taken. The appellant have relied on the decision of Hon ble Delhi High court in the case of Mala Petrochemical and Polymers (Supra) in para 23 of the said decision the following has been observed. 23. The power under Section 110A of the Act involves exercise of discretion. The scope of judicial review is to examine if the discretion has been rightly exercised; that it is not based on irrelevant materials and is fair and reasonable in the circumstances. It is not an Appellate power. The drawing of a distinction between seizure of imported goods as a result of undervaluation and seizure of imported goods upon misdeclaration cannot per se be said to be irrational. On the contrary, the failure to draw such a distinction and treat all types of wrongful imports on an equal footing might result in miscarriage of justice. That is perhaps why Section 110A has been worded in the way it has, leaving some margin to the Customs in the exercise of their discretion subject, of course, to the recognised legal limits. In said case the party had deposited a much higher amount of 3 Crores whereas the value of goods was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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