TMI Blog2018 (8) TMI 257X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstances, it is not understood as to how and why the provisional release was granted by the Commissioner who as per Show Cause Notice is not the competent adjudicating authority in this case - the action of the Commissioner granting the provisional release itself is not sustainable and liable to be set aside. Appeal allowed - decided in favor of appellant. - Appeal No. C/51424/2018 with C/Misc./50531/2018-DB - Final Order No. 52705/2018 - Dated:- 2-8-2018 - Hon ble Mr. Anil Choudhary, Member (Judicial) And Hon ble Mr. Bijay Kumar, Member (Technical) Ms. Anjali Manish, Advocate - for the appellant Shri R. K. Majhi, D.R. - for the respondent ORDER Per Bijay Kumar Being aggrieved with the provisional order No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2016 dated 11.8.2016 under Section 124 of the Customs Act. During the pendency of adjudication, the provisional release was granted by ld. Commissioner (Import) vide the impugned order of the provisional release of the goods. 3. The ld. Advocate on behalf of the appellant submitted that the conditions for the provisional release has been set forth in the impugned order which is as under: (i) On submission of bond of ₹ 58,23,932/- i.e. full value of the seized goods; (ii) On furnishing of a bank guarantee with auto renewal clause, for ₹ 45,00,000/- and; (iii) An undertaking that the identity of the goods shall not be disputed. 5. The ld. Advocate has relied on the following case laws regarding the provisional relea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act, particularly in a case such as the present where the imported goods were unconditionally cleared by the Customs Authorities in the first instance. 6. On the other hand, ld. DR reiterated the grounds contained in the impugned order regarding the provisional release of the seized goods which is as per the guidelines issued by the CBEC under Circular No. 35/2017-Cus. Dated 16th August 2017, para 2.1, 2.2 and 2.3 which is relevant are reproduced as under: 2.1. Seized imported goods shall be released provisionally by the competent authority upon request of the owner of the seized goods, subject to executing a Bond for the full value/ estimated value of the seized goods. 2.2. Further, in addition to the Bond mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 8. From the perusal of the provision of Section 110A and Circular No. 35/2017 discussed (supra), it is quite evident that in case of provisional release of the seized goods is to be decided by the adjudicating authority who is competent to decide the case as per show cause notice. In this case, it is on record that Show Cause Notice has been issued by the Joint Commissioner of Customs who is also the adjudicating authority in the case. In the circumstances, it is not understood as to how and why the provisional release was granted by the Commissioner who as per Show Cause Notice is not the competent adjudicating authority in this case. The proper course would have been to get the provisional release ordered by the Joint Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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