TMI Blog2020 (6) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... e allowed, under Section 110A of the Act, of any goods, documents or things seized . The Court, as the interpreter of the legislation, cannot profess to greater wisdom than the legislator. Where the legislature has not thought it appropriate to limit, in any manner, the nature of goods, documents or things which may be provisionally released, under Section 110A, it is no part of the function of a court to read, into the said statutory provision, any artificial limitation, not to be found therein. It is only in exceptional situations, where there is an apparent legislative lacuna, which, if left unfilled, would result in manifest injustice, or frustrate the object of the legislation, that a Court can step in and fill the lacuna and, to that limited extent, perform a quasi-legislative function. Else, the Court must rest content with being an interpreter of existing legislation, and has to accept the legislation for what it is. An executive instruction, which runs contrary to the parent statute and is, therefore, void and unenforceable and, in view thereof, need not be challenged. It is stillborn ab initio, faultily conceived; its evisceration, by legal process, is entirely unnece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Through: Ms. Maninder Acharya, Additional Solicitor General with Mr. Ajit Sharma, Mr. Krishnesh Bapat, Mr. Shikhar Kishore, Ms. Shefali Jaiswal, Mr. Viplav Acharya and Mr. Annant Ram Mishra, Advs. Respondent Through: Mr. S. Ganesh, Sr. Adv. With Mr.Kumar Shashank, Mr. Abhishek Malhotra, Mr. Akshay Anand, Mr. Aditya Garg, Ms. Yashashvika Sharma, Ms. Sayesha, Mr. Samuel Khobung, Ms. Shagufa Shalini, Mr. A. Kapoor, Mr. Nimesh Kumar, Ms. Riya Dhingra and Mr. Satyaveer Yadav, Advs. J U D G M E N T C. HARI SHANKAR, J. 1. This appeal, at the instance of the Additional Director General (Adjudication), Directorate of Revenue Intelligence (DRI) (hereinafter referred to as the ADG, DRI ), assails Final Order No. 51470/2019, dated 13th November, 2019, passed by the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as CESTAT ) in Customs Appeal No. 52593 of 2019 which, in turn, was preferred, before the learned Tribunal against Order-in-Original, dated 4th October, 2019 passed by the appellant. 2. Vide order dated 29th January, 2020, this appeal was admitted on the following substantial questions of law: (i) Whether the CESTAT can su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also permitted, subject to conditions as in Handbook of Procedures. 4.2 Re-import of jewellery, exported abroad, is permitted, dutyfree, under S. No. 5 of the table contained in Notification 45/2017-Cus dated 30th June, 2017, subject only to the satisfaction, of the Assistant/Deputy Commissioner of Customs, that the re-imported jewellery is the same as that which was exported. Notification 45/2017-Cus, to the extent it is relevant for the purposes of the present controversy, is reproduced thus: In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962) the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts the goods falling within any Chapter of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) and specified in column (2) of the Table below when re-imported into India, from so much of the duty of customs leviable thereon which is specified in the said First Schedule, and the whole of the, integrated tax, compensation cess leviable thereon respectively under subsection (7) and (9) of section 3 of the said Customs Tariff Act, as is in excess of the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cate issued by the jurisdiction of Customs authority about receipt of reimported goods into their factory or the premises from where the goods were supplied. 2 Goods, other than those falling under Sl. No. 1 exported for repairs abroad Duty of customs which would be leviable if the value of reimported goods after repairs were made up of the fair cost of repairs carried out including cost of materials used in repairs (whether such costs are actually incurred or not), insurance and freight charges, both ways. 3 Cut and polished precious and semiprecious stones exported for treatment abroad as referred to in para 4A.20.1 of the Foreign Trade Policy, other than those falling under Sl No. 1 Duty of customs which would be leviable if the value of re-imported precious and semiprecious stones after treatment were made up of the fair cost of treatment carried out including cost of materials used in such treatment, whether such costs are actually incurred or not, insurance and freight charges, both ways. 4 Parts, components of the air ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for clarifying the issue of applicability of Notification no. 45/2017-Customs on the re-import of goods which had been earlier exported either for participation in exhibition or on consignment basis. 2. Matter has been examined. Circular No. 108/27/2019GST, dated 18-7-2019 [2019 (26) G.S.T.L. C64] has clarified that the activity of sending/taking the specified goods (i.e. goods sent/taken out of India for exhibition or on consignment basis for export promotion except the activities satisfying the tests laid down in Schedule I of the CGST Act, 2017) out of India do not constitute supply within the scope of Section 7 of the CGST Act as there is no consideration at that point in time. Since such activity is not a supply, the same cannot be considered as Zero rated supply as per the provisions contained in Section 16 of the IGST Act, 2017. Also that there is no requirement of filing any LUT/bond as required under section 16 of IGST Act, 2017 for such activity of taking specified goods out of India. 3. Situation mentioned at Sl. No. 1(d) of the Notification no. 45/2017-Customs, dated 30-6-2017 require payment at the time of re-import of integrated tax not paid initially a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19 and (ii) 25,299.68 grams of gold jewellery being imported under an unregistered Bill of Entry. Both Bills of Entry ( Bs/E ) were assessed on 24th April, 2019, and clearance of the gold jewellery allowed. The jewellery was seized at the Airport, but after it had crossed the Customs barrier. 7. The seizure at the workshop/factory premises of the respondent covered : (i) 25 gold bars, each of which weighed 1 kg, thereby weighing, in total, 25 kg, and (ii) gold bars, gold dust, gold jewellery, cut pieces weighing 27,330 grams, and silver bars weighing a total of 44,778 grams. 8. Provisional release, of the aforesaid gold, gold jewellery and silver etc., was repeatedly sought, by the respondent, but to no avail. The respondent, thereupon, moved this Court by way of WP (C) 8707/2019 (Its My Name Pvt Ltd v. U.O.I.), which was disposed of, by us, vide order dated 9th August, 2019, with a direction, to the present petitioner, to decide the representation, dated 31st July, 2019, of the respondent, for release of the aforesaid seized gold, jewellery and silver, in accordance with law. 9. The representation, dated 31st July, 2019, of the respondent, seeking p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led at the time of export of the goods from Dubai, (iv) Customs endorsed colour photographs of the jewellery, (v) Bills of Entry, for the imported jewellery, and (vi) Packing Lists, covering the imported jewellery. (b) No evidence had been produced, by the Revenue, which could indicate that the jewellery in issue was different from the jewellery which had been exported, for the purpose of exhibition, under Shipping Bills dated 20th February, 2019 and 13th March, 2019. (c) The assessing officer had allowed clearance of the jewellery after perusing the documents and satisfying himself that the jewellery being sought to be imported was the unsold jewellery, which had earlier been permitted to be exported for the purpose of exhibition. (d) In this scenario, procedural violations, regarding the Bill of Entry, whereunder the imports were being sought to be effected, would not render the gold jewellery prohibited, under the Customs Act read with the Foreign Trade Policy. (e) Notification 45/2017-Cus, dated 30th June, 2017, read with Notification 21/2019-Cus dated 24th April, 2019, merely requires that the goods, being sought to be imported, were the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the respondent. The balance of convenience favoured permitting such provisional release, as continued detention of the gold, gold jewellery and silver had thrown the business of the respondent into jeopardy. 16. Reasoning thus, the learned Tribunal has, vide the impugned Final Order, permitted provisional release, of the seized goods, as noted in para 12 supra, on furnishing of a Bond covering the entire value thereof, and a Bank Guarantee for ₹ 1.25 crores. The present appeal 17. The present appeal, by the ADG, DRI, contends that the learned Tribunal erred in allowing provisional release of the seized gold, gold jewellery and silver. 18. Apropos the gold jewellery seized at the Airport, the appeal contends thus: (i) Though the Customs Gate Pass, dated 24th April, 2019, stated that Amit Pal Singh would be carrying one package/bag, he was, in fact, carrying two bags, containing 51172.4 g (post appraisement 50630 g) of gold jewellery. (ii) The documents issued by the Federal Customs Authority in the UAE, too, allowed Amit Pal Singh to carry one bag. (iii) The registered Bill of Entry presented by Amit Pal Singh did not cover the entire quantit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , corroborated the oral statements of the witnesses. (x) Clearly, therefore, 51172.4 grams of gold jewellery had been brought, into India, by Amit Pal Singh, on behalf of the respondent, with intent to evade Customs duty. 19. Insofar as the gold, gold jewellery and silver, seized from the workshop premises of the respondent, was concerned, the appeal merely relies on statements, recorded during the course of investigation, from various persons, to allege that the said gold, too, had been similarly smuggled into India. There is, however, significantly, no traverse, in the appeal, to the specific finding, of the learned Tribunal, that 22 of the 25 gold bars, seized from the workshop premises, contained distinctive bar numbers, which corresponded to the bar numbers of the gold bars imported by the respondent, using the Advance Authorisation issued to it, under Bill of Entry No. 2873288 dated 17th April, 2019, and Packing List dated 15th April, 2019. Submissions at the Bar 20. Detailed submissions were advanced, before us, on the appeal; on behalf of the ADG, DRI/the appellant, by Ms. Maninder Acharya, learned Additional Solicitor General, and, on behalf of the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statements had been recorded, during investigation, under Section 108 of the Act, had admitted the smuggling, into India, of gold jewellery in larger quantities, and later substitution of Bills of Entry, for lesser quantities. She also questioned the correctness of the finding, in para 25 of the impugned Final Order of the learned Tribunal, to the effect that the order, dated 4th October, 2019, of the ADG, DRI, rejecting the prayer for provisional release of the seized gold, silver and jewellery, was unreasoned or cryptic. She submitted that the subsequent finding, in para 26 of the impugned Final Order, to the effect that the gold, seized at the Airport, was covered by two Bills of Entry, namely Bill of Entry No. 107190 dated 26th February, 2019, and a second, undated, Bill of Entry, was incorrect on facts, as, on being intercepted, Amit Pal Singh was not found in possession of any Bill of Entry. The learned ASG further drew attention to the recital, in the Show Cause Notice issued to the respondent, to the effect that the consignee copy of the Shipping Bill, issued by the Dubai Customs authorities indicated export, by Amit Pal Singh, of 0.745 kg gold jewellery, in one bag, with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, in the present case. Mr. Ganesh places reliance, in this context, on the judgement of the Supreme Court in K. Ravindranathan Nair v C.I.T. 2001 (127) ELT 11 (SC): (2001) 1 SCC 135. 28. Addressing, first, the residual submission, of the learned ASG, to the effect that the learned Tribunal ought not to have, itself, fixed the terms for provisional release, Mr. Ganesh submits that there is no justification or basis for this argument. He submits that, once the learned ADG had already opined that the goods were prohibited, and that provisional release, thereof, could not be allowed prior to adjudication, no purpose, whatsoever, would have been served, by remanding the matter to the learned ADG. He submits that the powers of the learned Tribunal were coequal with those of the adjudicating authority, insofar as permitting provisional release of the goods was concerned, and drew the attention of this Court to various decisions, in which the High Court had itself fixed the terms of provisional release or, in the alternative, directed the learned Tribunal to do so, including M. D. Overseas Ltd v. U.O.I. 2017 (355) ELT 185 (Del), Mink Tradecom Pvt Ltd v. U.O.I. 2018 (8) GSTL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, would sufficiently safeguard the interests, and allay the apprehensions, of the Revenue. Discussion and Findings Scope of the present appeal 34. Before proceeding to address the primary issues, canvassed at the Bar and urged in the pleadings, we deem it appropriate to delineate, precisely, the scope, and ambit, of the present proceedings. 35. At the outset, we are required to bear, in mind, the fact that the issue of whether there was, in fact, smuggling of gold, gold jewellery, and silver, by the respondent, and whether the seized goods were liable to confiscation, are alive before the authority, adjudicating the Show Cause Notice, dated 26th September, 2019, issued to the respondent. It would be entirely inappropriate, on our part, to express any opinion, even tentative, regarding the allegations in the Show Cause Notice, save and except to the extent such expression is absolutely indispensable, for the purposes of deciding the present appeal. We cannot allow the present appeal to be converted into an appellate proceeding, against an adjudication order, which is yet to be passed, consequent on adjudication of the Show Cause Notice dated 26th September, 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , would vary from case to case. 23. Moreover, although a finding of fact can be interfered with when it is perverse, but it is also trite that where the courts below had ignored the rate of preponderating circumstances and allowed the judgement to be influenced by inconsequential matters, the High Court would be justified in considering the matter and incoming to its own independent conclusion. [See Madan Lal v. Mst. Gopi Anr. (AIR 1980 SC 1754 )] 24. The High Court shall also be entitled to opine that a substantial question of law arises for its consideration when material and relevant facts have been ignored and legal principles have not been applied in appreciating the evidence. Arriving at a decision, upon taking into consideration the relevant factors, would also give rise to a substantial question of law. It may, however, be different that only on the same set of facts the higher court takes a different view. [ See Collector of Customs, Bombay v. Swastic Woollen (P) Ltd Ors, (1988) Supp SCC 786 and Metroark Ltd v. Commissioner of Central Excise, Calcutta, (2004) 12 SCC 505] 25. Even in the case where the evidence is misread, the High Court would have the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s substantial. One of the principles so summarised, is : The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to decision based on no evidence , it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding . (Emphasis supplied) 41. Certain instructive cases, where the Supreme Court opined that no substantial question of law had arisen, from the order of the learned Tribunal, may be noticed, at this juncture: (i) In Commissioner of Customs v. Contessa Commercial Co. Ltd 2015 (324) ELT 638 (SC), it was alleged, by the Revenue, that the respondent importer was importing junk software, on CD-ROMs, highly overvaluing the imports, so as to avail various benefits. The T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not called upon to adjudicate, either finally or tentatively, on the alleged infractions committed by the respondent, or the consequent liability, if any, of the seized goods to confiscation under the Act. In the absence of any such adjudicatory exercise having taken place at the hands of the authority below, the question of whether any substantial question of law , relatable to the infractions alleged to have been committed by the respondent, at all arises before us at this stage, becomes seriously questionable. 43. Perversity, as the afore-cited decisions would make it apparent, is a ground on which the High Court could, in exercise of its jurisdiction under Section 130 of the Act, interfere with findings of fact, returned by the learned Tribunal. A finding is treated as perverse when no reasonable person should have arrived at such a finding Triveni Rubber Plastics v. Collector, AIR 1994 SC 1341. In Sumitomo Heavy Industries Ltd v. O.N.G.C. (2010) 11 SCC 296, it was held that a perverse finding was one which was not only against the weight of evidence but altogether against the evidence . A comprehensive dissection of the concept of perversity, when applied to f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. An order of provisional release is, at all times, an interlocutory exercise, and does not finally adjudicate on any liability. The following passages, from U.O.I. v. Manju Goel 2015 (321) ELT 19 (SC), merit reproduction, in this context: 3. The High Court, after hearing the matter, disposed of the writ petition vide impugned judgment dated 2-3-2005 directing the appellants to release the goods on provisional basis on the condition that the respondent herein would deposit the amount of customs duty and would also furnish a bank guarantee of 20 per cent of the value of the goods in question and for the balance value of the goods, she would furnish a personal bond to the satisfaction of the concerned authority in the Customs Department. Operative portion of the judgment reads as under : However to protect the interest of revenue, we direct that the goods in question be released on provisional basis within two weeks from the date of receipt of this order, provided that the petitioner deposits the amount of CD and furnishes bank guarantee of 20% of the value of the goods in question and for the balance value of goods, furnish a personal bond to the satisfaction of conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pe 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. Mala Petrochemicals Polymers 2017 (353) ELT 346 (Del) was followed, subsequently, in Maggie Marketing (P) Ltd v. Commissioner of Customs (Exports) (2019) 366 ELT 70 (Del). 48. Clearly, provisional release may be allowed, under Section 110A of the Act, of any goods, documents or things seized . The Court, as the interpreter of the legislation, cannot profess to greater wisdom than the legislator. Where the legislature has not thought it appro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act permits release thereof, on payment of redemption fine. 50. We are, therefore, unable to subscribe to the submission, of the learned ASG, relying on Om Prakash Bhatia , that , by virtue of their having been imported in contravention of the Act, the gold, gold jewellery and silver, which were seized, had acquired the character of prohibited goods and had, consequently, become ineligible for provisional release. We do not deem it necessary to enter into the niceties of the issue of whether, applying Om Prakash Bhatia , the goods in issue could be regarded as prohibited or not. It is not the case of the Revenue that the gold, gold jewellery or silver, forming subject matter of controversy, was prohibited for import per se, in that there was any provision, in the Foreign Trade Policy, or any other statutory instrument, absolutely prohibiting import thereof. The learned ASG seeks to treat the import of the seized gold, gold currency and silver as prohibited , by drawing an analogy from Om Prakash Bhatia. Even if, for the sake of argument, the gold, gold jewellery and silver were to be treated as prohibited , that, by itself, would not render the ineligible for pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eks to supplant Section 110A, to that extent, and has, therefore, to be regarded as void and unenforceable at law. 52. An executive instruction, which runs contrary to the parent statute and is, therefore, void and unenforceable and, in view thereof, need not be challenged. It is stillborn ab initio, faultily conceived; its evisceration, by legal process, is entirely unnecessary. As such, the reliance, by the learned ASG, on the absence of any specific challenge, by the respondent, to the Circular, fails to impress. 53. We have, therefore, in exercising our jurisdiction under Section 130 of the Act, to ensure that such exercise regulates within the aforesaid well-delineated boundaries. On merits 54. Before proceeding to deal with the actual aspect of provisional release of the seized gold, gold jewellery and silver, we deem it appropriate to deal with the residual submission, of the learned ASG, to the effect that the learned Tribunal ought not, in any case, to have itself exercised the jurisdiction, vested in the adjudicating authority in the present case, in the ADG, DRI and fixed the terms of provisional release. According to her, the only course of action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned Tribunal, in directing provisional release and fixing the terms thereof, rather than remand in the matter to the ADG, to undertake the said exercise. 57. Secondly, in the present case, any such demand, by the learned Tribunal, to the ADG, as Mr. Ganesh has correctly submitted, would have been an exercise in futility. We are entirely in agreement with the finding, of the learned Tribunal, regarding the unsustainability, ex facie, of the order, dated 4th October, 2019, of the learned ADG. In fact, the order borders on perversity, and may also amount, perilously, to disobedience, of the directions issued by us in our order dated 9th October, 2019 in WP (C) 8707/2019. Para 7.3 of the order, dated 4th October, 2019, of the learned ADG, reads thus: In view of above mentioned citations on restricted and prohibited goods, it appears that it would be premature to arrive at any conclusion, about provisional release of seized goods, before completion of adjudication proceedings. (Emphasis supplied) To us, this finding is completely inscrutable, and is, on the face of it, contradictory in terms. There can be no question of provisional release of seized goods, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions of law, arising from the impugned order of the learned Tribunal. We are not an appellate authority on facts; we exercise appellate jurisdiction only on substantial questions of law . It is obvious that an order of provisional release, is essentially a discretionary order, as is apparent from the very tenor of Section 110A of the Act. The scope of interference, by an appellate court, with a discretionary order of the court below, especially where the appellate jurisdiction is statutorily limited to substantial questions of law, is heavily circumscribed. In passing an order of provisional release, there is no adjudication, by the authority concerned, of the competing rights and liabilities of the parties before it. The authority does not pronounce on the issue of whether there has, or has not, been an actual evasion of duty, or other contravention of Customs law, by the importer seeking provisional release. That is an exercise which has to suffer the rigour of the adjudicatory process, which, in the case of the present respondent, stands set in motion with the issuance of Show Cause Notice dated 26th September, 2019. 61. At the same time, provisional release is not a rule, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try No. 2873288 dated 17 April 2019 which are having specific and unique bar number. On verification of the unique bar number of the seized gold bars which the gold bars imported vide above mentioned bill of entry having packing list dated 15 April 2019 for the invoice H-3470, we find that 22 gold bars weighing 1 kg each totally weighing 22 kg, absolutely tallies with the Gold bar numbers which was imported under the bill of entry No. 2873288. It is also a matter of record that the main karigar of the appellant who was supervising manufacturing of gold jewellery has categorically mentioned that from the imported gold bars he has made jewellery of 7 kg and certain other jewellery and certain quantities were work-under progress in the form of gold, dust and other pieces of jewellery at different stages of manufacturing. We also find that the appellant have also made certain purchases of the gold from the local market and for which he has necessarily purchase invoices and this Court has also been used for manufacture of gold jewellery. We find that the seizure made by the Investigating Agency at the factory premises of the appellant does not explain in detail as to why the goods h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned Final Order, observed that the Assessing Officer after scrutiny of all the relevant documents and on satisfaction has allowed the clearance of the imported gold jewellery and had endorsed that the imported gold jewellery was same which had been exported under the 2 shipping bills (as mentioned in preceding paras). The appeal, of the ADG, DRI, does not seek, in any manner, to traverse this specific finding, i.e., that the imported gold jewellery was the same as that which had been exported, for participation in the exhibition, and that the competent assessing officer had satisfied himself on this count. The appeal, before us, avers, instead, that (i) the Customs Gate Pass Book, dated 24th April, 2019, found in the possession of Amit Pal Singh, indicated that he would be carrying one package, whereas he was found carrying two packages/bags, (ii) similarly, the documents issued by the Federal Customs Authorities in the UAE, also indicated that Amit Pal Singh would be carrying one package/bank of 22 carat gold jewellery, and not two packages/bags, (iii) at the time of his interception, Amit Pal Singh was not found to be in possession of any copy of either of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y was, in fact, the same as that which had earlier been exported vide Shipping Bills dated 20th February, 2019 and 13th March, 2019, for the purpose of exhibition abroad. While examining an appeal, against the decision, of the learned Tribunal, to allow provisional clearance of the jewellery, we are not required to enter into the correctness of these facts, especially as, save and except by way of reference to various statements, recorded during the course of investigation, there is precious little, in the appeal of the ADG, DRI, to dispute the same. 72. Insofar as the quantity of 25400.06 grams of gold jewellery, covered by the registered, apprised, dated and signed Bill of Entry, dated 20th April, 2019, is concerned, therefore, the decision, of the learned Tribunal, to allow provisional clearance, cannot be said to be perverse, so as to give rise to any substantial question of law, as would warrant interference, in appeal, by us. We may repeat, in this context, that the decision, as to whether the gold jewellery ought, or ought not, to have been provisionally released, was entirely discretionary. The facts before the learned Tribunal, which are also before us, cannot be said t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisional release, Section 110A would be reduced to a dead letter. 75. Allegations in a Show Cause Notice are merely allegations, till proved, in adjudication. Were there to be no material, whatsoever, justifying clearance of the imported goods, such allegations may, conceivably, have a part to play, in examining the request for provisional release. Where, however, as in the case of the 25400.06 grams of gold jewellery, seized at the Airport in the present case, a duly registered and assessed Bill of Entry was present, the goods were apprised and found to be identical to the goods exported for exhibition, and the Bill of Entry had been signed by the Customs Import Clerk, as well as by the importer, we cannot fault the learned Tribunal in having permitted provisional release of the gold jewellery. 76. We are not persuaded to change our view, on the basis of the various statements, recorded under Section 108 of the Act, on which the learned ASG sought to rely. Statements, under Section 108 of the Act, we may note, though admissible in evidence, acquire relevance only when they are, in fact, admitted in evidence, by the adjudicating authority and, if the affected assessee so ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the stage of relevance, in adjudication proceedings, of the statement, recorded before a Gazetted Central Excise Officer during inquiry or investigation, would arise only after the statement is admitted in evidence in accordance with the procedure prescribed in clause (b) of Section 9D(1). The rigour of this procedure is exempted only in a case in which one or more of the handicaps referred to in clause (a) of Section 9D(1) of the Act would apply. In view of this express stipulation in the Act, it is not open to any adjudicating authority to straightaway rely on the statement recorded during investigation/inquiry before the Gazetted Central Excise Officer, unless and until he can legitimately invoke clause (a) of Section 9D(1). In all other cases, if he wants to rely on the said statement as relevant, for proving the truth of the contents thereof, he has to first admit the statement in evidence in accordance with clause (b) of Section 9D(1). For this, he has to summon the person who had made the statement, examine him as witness before him in the adjudication proceeding, and arrive at an opinion that, having regard to the circumstances of the case, the statement should be admitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egistered Bill of Entry, importation of goods is impermissible. The quantity of 25299.68 grams of gold jewellery, being not covered by any registered, signed or apprised Bill of Entry, bearing the signature either of the importer or of the Customs Import Clerk, could not, in our view, have been provisionally released, as the import was invalid and irregular ab initio. The exercise of discretion, by the learned Tribunal, in allowing provisional release of the said quantity, by clubbing it with the 25400 grams of gold jewellery, in respect of which there was a registered, signed and apprised Bill of Entry, with a specific Job Number, in our view, was completely untenable in law. It cannot, therefore, be said that the learned Tribunal, in allowing provisional release of the quantity of 25299.68 grams of gold jewellery, for which no registered or signed Bill of Entry, having an assigned Job No, was available, exercised its discretion in accordance with law. The exercise of discretion by the learned Tribunal, in respect of this quantity of gold, therefore, in our view, suffers from perversity in law, and cannot sustain. 80. We are constrained, therefore, to set aside the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of Customs (Export) 2016 (336) ELT 73 (Del) and Spirotech Heat Exchangers Pvt Ltd v. U.O.I. 2016 (341) ELT 110 (Del). 84. In the present case, however, the gold was imported, seeking exemption from payment of duty under the Advance Authorisation scheme and the Exhibition Export scheme. The Show Cause Notice, dated 26th September, 2019, issued to the respondent by the ADG, DRI, to, does not propose any duty demand, but seeks, instead, to confiscate the seized gold, gold jewellery and silver. The total value of the said gold, gold jewellery and silver has been reckoned, in the Show Cause Notice, to be ₹ 28,23,82,357/ . 85. The learned ASG submits that, given the value of the gold seized, the condition of furnishing of a Bank Guarantee for ₹ 1.25 crores, is woefully inadequate. 86. There appears, prima facie, to be substance in the grievance voiced by the learned ASG. In our view, therefore, the interests of justice would justify modification, of the terms fixed by the learned Tribunal for provisional release of the seized gold, gold jewellery and silver, by requiring the respondent to furnish a bond, for the full value of the seized goods, along wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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