TMI Blog2019 (10) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... iation of our interim order dated 16.01.2018. The bank guarantee, was to really operate until Fomento returns the vessel within the jurisdictional limits of the Customs within the time stipulated. There is no dispute that the vessel was returned, though, with some marginal delay which was also deemed to be condoned. Today, admittedly, Fomento has appealed the adverse order dated 28.05.2019 by making requisite pre-deposit. In terms of the Circulars dated 16.09.2014 and 10.03.2017, even the Customs does not dispute that the demand pending appeal is not to be recovered by coercive means. In such a situation, it will not be appropriate to require Fomento to maintain the bank guarantee as a precondition for Customs not initiating coercive pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. In M.C.A. No.667 of 2019, the Customs seek extension of the aforesaid bank guarantee for further period of three months or disposal of the appeal instituted by Fomento before the CESTAT. 5. Accordingly, learned counsel agree that it is only appropriate that both these applications are disposed of by a common order. 6. Fomento's vessel FC Maria Laura was seized by the Customs alleging evasion of customs duty. This seizure was challenged by Fomento by instituting Writ Petition No.65 of 2018. This Court, in its order dated 16.01.2018, after observing that the seizure is prima facie without jurisdiction granted interim relief to Fomento permitting the use of the vessel for loading/export operations within the j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te. According to us, this later direction was in order to protect the interest of the Customs for limited time, should the Customs desire to challenge the quashing of seizure notice. 12. Since, in the meanwhile, Customs had issued a show cause notice dated 05.07.2018 to Fomento, Fomento instituted Writ Petition No.400 of 2019 questioning the same on the ground that the main premise of the show cause notice was the same as the main premise of the seizure notice. 13. Writ Petition No.400 of 2019 was disposed of by this Court on 22.04.2019. This Court, accepted the statement of Ms. Kamat on behalf of Customs that the show cause notice would be disposed of after afford of opportunity to Fomento on or before 29.05.2019, which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 29/11/2018 to respondent no.1 which anyway has expired. 3. Miscellaneous Civil Application is disposed of in the above terms. 17. Customs took out further M.C.A. No.667 of 2019 seeking extension of bank guarantee for three months or until disposal of appeal instituted by Fomento before CESTAT. Interim order was made in this M.C.A. on 19.07.2019 and in terms thereof the bank guarantee was extended upto 15.08.2019. Liberty was also granted to Fomento to take out M.C.A. for discharge of bank guarantee. 18. Ms. Kamat and Ms. Desai point out that the issue of bank guarantee is now linked to the demand of over ₹ 6 crores which stands confirmed vide order dated 28.05.2019 which is the subject matter of appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced in a position worse than what it was, when the seizure orders were yet to be set aside. He submits, on instructions, that Fomento will even now undertake not to take the vessel beyond the jurisdiction of Customs, pending appeal before CESTAT, without seeking leave from CESTAT. For all these reasons, he submits that M.C.A. No. 667 of 2019 be dismissed and M.C.A. No.739 of 2019 be allowed. 20. Upon due consideration of the rival contentions as well as the various orders made by us in this matter, we are satisfied that the bank guarantee is required to be discharged by accepting undertaking on behalf of Fomento that the vessel will not be taken out of the jurisdiction of the Customs (in Goa) pending Fomento's appeal before CES ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... might have been encashed by the Customs, no sooner the demand in the show cause were to be confirmed. The purpose of this direction was not to place Fomento in a position, any less advantageous than a similarly placed assessee. This was more so after the Customs seizure notice was quashed by a detailed judgment and order dated 05.04.2019. 22. Today, admittedly, Fomento has appealed the adverse order dated 28.05.2019 by making requisite pre-deposit. In terms of the Circulars dated 16.09.2014 and 10.03.2017, even the Customs does not dispute that the demand pending appeal is not to be recovered by coercive means. In such a situation, it will not be appropriate to require Fomento to maintain the bank guarantee as a precondition for Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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