TMI Blog2018 (12) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... peal Nos. C/77296 & 77297/2018 - FO/77037-77038/2018 - Dated:- 6-12-2018 - SHRI P. K. CHOUDHARY, JUDICIAL MEMBER And SHRI V. PADMANABHAN, MEMBER (TECHNICAL) Shri B.K. Singh, Advocate and Shri S.M. Akhtar, Advocate for the Appellant Shri S. Guha, AC(AR) for the Respondent Shri Sunil Kr. Jha, Intelligence Officer, DRI. ORDER Per Shri V. Padmanabhan: These appeals have been filed by the importers against the Orders dated 15.06.2018 by the Commissioner of Customs (Port), Kolkata. These impugned orders were passed in respect of M/s. Opel Exports (covering 3 bills of entry No.3397549, 3397496, 3397497 all dated 26.09.2017) as well as M/s. R.K. Exports (covering 2 bills of entry no.3397498 and 3429621 dated 29.09.2017). The importers had filed Bills of Entry for clearance of certain imported goods. The DRI carried out investigation into these imports (along with many other Bills of Entry). The DRI found on examination that in addition to the goods declared in the Bills of Entry, certain undeclared goods were also found. The valuation of the goods imported was also disputed. The goods were seized and further investigations were carried out. In the meantime ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... K.Exports vide Final Order No.SO/75678-75679/2018 dated 11.06.2018. In similar circumstances, the Tribunal has ordered that the goods cannot be considered as prohibited goods under Section 111(d) of the Customs Act, 1962 on account of IEC Code lending. d) In the above decision of the Tribunal reliance has been made to the decision of the Hon ble Bombay High Court in the case of Hamid Fahim Ansari vs. Commr. Of Customs (Import), Nhava Sheva [2009(241) ELT 168 (Bom.)] e) He further placed reliance on the decision of the Hon ble Kerala High Court in the Writ Appeal No.956 of 2011, in which also the Hon ble High Court has expressed a similar view. f) While pressing his request for provisional release of the goods, the ld. Advocate also submitted that the valuation of the goods adopted by the Customs Authorities is unfairly high. Against the declared value of about ₹ 54.93 lakhs, the seizure value of the consignment has been recorded at ₹ 4.02 Crores. g) He further submitted that there was no sanction in law to value the goods at the market value, since seizure have been made within the customs area. He also submitted that goods may be valued as per with NIDB dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sari vs. Commr. Of Customs (Import), Nhava Sheva [2009(241) ELT 168 (Bom.), the relevant portion of the order is reproduced below: 5. In other words, imports have been done in the name of the petitioner but for some other person. In so far as respondents/Customs Authorities is concerned, they have not pointed out to us any provision under the Customs Act or any Rule or Regulation framed thereunder by which the person having valid IEC Number and having paid the custom duty is prevented from importing goods. At the highest, if the petitioner has obtained IEC number by misrepresenting the Ministry of Commerce and Industry and Director General of Foreign Trade, it is for that body to take action. 6. In these circumstances, in our opinion, petitioner having paid the customs duty is entitled to release of the goods. We, therefore, direct respondents to release the goods within 48 hours from today. 7. Rule made absolute accordingly. No order as to costs. 8. The Tribunal s earlier order dated 11.06.2018 has been passed in connection with certain other bills of entry which were the subject matter of investigation by DRI in the same set of cases. As such this leads to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicating the legal basis on which the action is proposed and also the nature of the action proposed for such perceived violation of law on the part of the respondents after giving a reasonable opportunity to the importer to meet the case against him. Instead of proceeding to determine the duty leviable on the imported goods by following the appropriate procedure or passing an order of confiscation if they believe that they are justified in the facts and circumstances, the respondents, it appears, are indefinitely detaining the goods without any appropriate order being passed thereon. Such a course of action, in our opinion, is absolutely illegal. 16. Coming to the submission of the appellant that the respondents are bound to release the goods under Section 11OA of the Customs Act pending adjudication of the legality of the import, we are of the opinion that as rightly held by the learned Single Judge, Section 11OA does not create an absolute right in favour of the importer, but vests a discretion in the customs authorities to follow such course in appropriate case goes without saying that it is only a discretion to be exercised in accordance with the well settled principle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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