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TMI Blog2018 (11) TMI 1592X X X X Extracts X X X X X X X X Extracts X X X X ..... PS may be pleased to issue a writ of Mandamus or writ in the nature of mandamus ordering and directing the Respondents their subordinates, servants and agents to forthwith permit the Petitioner to export/reexport the goods; (C) During the pendency and Final Disposal of the present petition YOUR LORDSHIPS may be pleased to direct the Respondents to allow the Petitioner to export the seized goods without any further delay; (D) Any other further relief as may be deemed fit in the facts and circumstances of the case may also please be granted;" Thus, essentially the petitioners have assailed the communication dated 24th April 2018 wherein the Assistant Commissioner, Customs has intimated its decision to Deputy/Assistant Commissioner of Customs that the petitioners' request for reexport of the cargo cannot be considered as it was a case of misdeclaration and the request for reexporting be considered only after adjudication of show cause notice, and writ of mandamus, direction or any other appropriate writ to the respondents permitting the petitioners to reexport the cargo/goods in question on the ground that as such in absence of any specific provisions against the petitioners& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28th September 2018 the Court while issuing notice and making it returnable on 11th October 2018 restrained the authorities from taking further action pursuant to the order dated 6th April 2018. 5. During the pendency of this petition, learned counsel for the respondent placed on record the order in original dated 31th October 2018 issued on 5th November 2018 and submitted that the show cause notice culminated into the order against the petitioners and the petitioners are at absolute liberty to pursue their remedy if they are aggrieved on account of passing of the same. 6. Learned counsel for the petitioners submitted that the petitioners would surely pursue the remedy available under the law for assailing the order dated 31st October 2018 issued on 5th November 2018 and they do not want to challenge the same in the present proceedings by way of writ petition. However, passing of the said order or reserving the liberty to challenge the same in accordance with law may not in any manner jeopardized their contention and prayers made in this petition as those prayers could be considered despite the order being there on record as the petitioners have sought liberty to challenge the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the provisions of Section 74, the authorities were not justified in withholding its permission for exporting in the reasons, which were not tenable in eye of law. 9. Learned counsel for the petitioners invited Court's attention to the indisputed aspect to the effect that the provisional release order and the factum of petitioners submitting the bank guarantee with auto renewal clause and the bond as required would clearly indicate that the petitioner if had physically cleared the goods from the warehouse and consumed or taken to its end user, then also the request for reexport under Section 74 would not change the scenario in any manner. The request for reexport being not contrary to provision of law, the authorities on specious plea of socalled evasion or socalled misdeclaration cannot seat tight over the permission to reexport as there exists no provision, which could be held against the petitioners' request for permission of reexporting the said cargo. 10. To support his contentions, learned counsel for the petitioners relied on the following authorities. (1) In case of Siemens Limited Vs. Collector of Customs reported in 1999 (113) E.L.T. 776 (S.C.). (2) In ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he proceedings. We are conscious of the fact that we are not rendering any final findings nor are we making any final orders in this petition. However, the unequivocal and indisputed facts and the provision of law shall not dissuade this Court from granting appropriate interim relief in a case like this else it would result into miscarriage of justice. We are of the considered view that the close perusal of the entire reply affidavit filed on behalf of the respondent, the respondent has not shown any cogent provision of law, which can be said to be entitled them to withhold the permission to reexport as sought by the petitioners. We are prima facie of the view that the fine distinction between the proceedings pursuant to the show cause notice and the challenge in the present petition have been loss sight of by the respondents else there would have been no hesitation on the part of the authorities in proceeding in accordance with law as the provision of Section 74 clearly envisages permissible grounds for reexport and there is not a single ground embedded therein, which may be considered as a ground militating against the prayer for permission for reexport. 15. The respondents appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16. The petitioners shall file undertaking as aforesaid within the period of one week from the date of receipt of this order before this Court. This undertaking would be in addition to the bank guarantee, which has already been furnished for Rs. 37,00,000/and the bond executed pursuant to the provisional release order of the bank guarantee as well as bond shall enure till the final disposal of this petition and the interim relief is granted only on the condition of furnishing undertaking as aforesaid and continuing the bank guarantee and the bond as stated hereinabove. The respondent by way of interim relief are hereby directed to process the request of the petitioners for reexport of the goods directly in accordance with law as provided under Section 74 and the processing of the reexport request may not be declined only on account of proceedings pursuant to the show cause notice. The said exercise be completed within the period of six weeks from the date of receipt of this order. 17. Passing of this order or observations made in this order shall have no bearing upon the proceedings that may be undertaken by the petitioners if any, for challenging the order dated 31st October 2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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