TMI Blog2021 (2) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... f the clarification Vide Circular No 01/2011-Customs dated 4th January 2011, there cannot be much justification for the delay in the issue of provisional release order vide the communication dated 13.06.2019, nearly two months after completion of examination of the goods and drawing of representative samples. Let the things be as they are we are not in position to find any reason for the enormous delay in handling of the goods which were cleared for export and subsequently called back. Also we are unable to find any reason for this delay when the revenue itself contends the outflow of the drawback, ROSL and IGST Refund. Do these delays not hamper the interest of the revenue itself - in view the failure on the part of revenue to complete the proceedings early within the prescribed time frame has not only affected the interests of the exporters, but has also impacted the revenue interests - In case revenue is not in position to complete the entire proceedings within one month time, then they should allow the provisional release of the detained export goods immediately within a week from the date of receipt of this order, on execution of the bond equivalent to the value of the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 227601 56900 5 8397436/22.10.2018 4969615.20 124240 248479 69291 6 8397455/22.10.2018 5758022.16 143951 287900 80216 7 8397405/22.10.2018 5776164.90 144404 288808 79711 8 8397409/22.10.2018 5816675.70 145417 290833 80270 9 8397442/22.10.2018 5732277.63 143307 286613 79105 10 8397410/22.10.2018 5790169.44 144754 289508 85695 11 8397426/22.10.2018 5889180.73 147230 294458 87160 Total 64008136.7 1171805 4232438 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 June 2019 annexed at Exhibit-H to the petition passed by the Superintendent of Customs is an order under section 110A of the Customs Act, 1962 and an appeal is maintainable against such order as held by this Court in the case of Commissioner of Customs, Import-I v. S.S. Offshore Pvt. Ltd. [2018 (361) ELT 51 (Bom.)] 3. The learned counsel for the Petitioner, on instructions, states that the Petitioner would file an appeal to the Appellate Authority in the light of the decision of this Court in the case of S.S. Offshore Pvt. Ltd. The Petitioner has sought to raise various legal questions such as authority of the Officer who passed the order under section 110A of the Act, the validity of the seizure under section 110 as also the issue regarding detention and demurrage charges. All these issues are open to be contended before the Appellate Authority. 4. Keeping all the contentions of both the parties open, we dispose of the petition as above with liberty to the Petitioner to file an appeal. 5. At this stage, the learned Senior Advocate appearing for the Respondents states that in case the appeal is filed within a period of two weeks, the Respondents will not rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Panchnama prepared for examination of the goods. In various decisions as follows the goods have been release only on execution of the bond, without any bank guarantee,- Pallahan Industries [2015 (325) ELT 18 (P H)] Excel Export [2015 (323) ELT 476 (Guj)] Veer Imp[ex {2016 (332) ELT 87 (Guj)] Due to illegal detention made by the department they have suffered great financial hardship and losses. Since the goods are seasonal in nature any further detention will make the goods unmarketable. The detained goods are not prohibited goods and are freely tradable, hence as per CBIC instruction 30/2013-Cus dated 05.08.2013, the export goods should not have been detained so long. Further the procedure as per Circular No 01/2011-Cus, has not be followed nor the guidelines as prescribed by the Customs Manual has been adhered to. Due to continued illegal detention of the export goods, they have been forced to bear heavy demurrage in respect of these goods. They should not be subjected to these demurrage and detention charges due to failure of department to take timely action in the matter. Various courts have held that in such cases they are entitled to certifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... release the said container and expedite the process so as to enable us for recovery of our dues from the consignee as soon as possible. The grant of same would enable less use of manpower and the same shall facilitate us to put our energy into new ventures, we request you for the same for which we shall be grateful to you. Thank You Regards. 4.3 This letter is not in dispute and has been stated to be the reason for non issue of Show Cause Notice to the appellants within six months from date of detention/ seizure, as mandated by the Section 110 of the Customs Act, 1962. In their letter of 4.01.2021, filed during the course of hearing by the Authorized Representative, jurisdictional officers have at para 16, stated as under: 16. The exporter had requested waiver of SCN vide letter dated 27.05.2019 and accordingly on completion of investigation the matter the investigation report was issued on 18.10.2019. The subject matter is pending for adjudication with the adjudicating Authority i.e. Additional Commissioner of Customs, Export for determination of fine and penalties. 4.3 Nearly fifteen months have elapsed since the issue of the investigation repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t reach the destination and down the line 512 months of waiting he might refuse to pay the balance of the payment, Please it is a request to help us in dismay and allow us the said shipment be provisionally released so as to save the business in a last attempt for which we shall ever be grateful to you. We are ready to cooperate with the customs by providing any sufficient amount documents and evidence required further for the same. It is a humble and sincere request.fof which we shall ever pray. 4.5 The goods were examined by the departmental officers and the samples drawn on 10.04.2019, as stated by the appellants in their communication dated 12.04.2019, and not disputed by the revenue. In para 2 of their letter dated 04.01.2021, revenue sates as follows: 2. In this regard, it is to inform that on the basis of certain intelligence goods being exported vide 11 shipping bill No 8371039 8371034 both dated 20.10.2018, 8395903, 8395902, 8397436, 8397455, 8397405, 8397409, 839442, 8397410 and 8397426 all dated 22.10.2018 filed by M/s S G International, were kept on hold at JWR CPS vide Hold No 47/2018-19 dated 25.10.2018 by the Central Intelli9gence Unit, JNCH. Subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Act, 1962 would come into play. However, there may be situations when the goods are to be detained for purpose of tests etc. to confirm the declaration. In such cases the endeavour should be to quickly undertake the necessary action (test / enquiry etc.) and take appropriate legal action thereafter so that the period of detention is kept to the minimum. Thus, the following course of action is prescribed in respect of goods entered for exportation: (a) In case the export goods are found to be mis-declared in terms of quantity, value and description and are seized for being liable to confiscation under the Customs Act, 1962, the same may be ordered to be released provisionally on execution of a Bond of an amount equivalent to the value of goods along with furnishing an appropriate security in order to cover the redemption fine and penalty. (b) In case the export goods are either suspected to be prohibited or found to be prohibited in terms of the Customs Act, 1962 or ITC (HS), the same should be seized and appropriate action for confiscation and penalty initiated. (c ) In case the export goods are suspected of mis-declaration or where declaration is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or and ensure that these proceedings are finalized and completed within the above time frame. 4.12 In case revenue is not in position to complete the entire proceedings within one month time, then they should allow the provisional release of the detained export goods immediately within a week from the date of receipt of this order, on execution of the bond equivalent to the value of the goods and security in form of Bank Guarantee of ₹ 20,00,000/- (Rupees Twenty Lakhs only). While determining the amount of security we have taken the note of decisions of Hon ble Punjab an Haryana High Court and Hon ble Gujarat High Court referred to by the counsel for appellant. 4.13 in respect of detention and demurrage charges in their letter dated 18.10.2021, revenue has stated as under: 3. In regards to detention waiver, it is to that this office will follow Regulation 6(1)(l) of the Handling of Cargo in Customs Areas Regulations, 2009 which states that- The Customs Cargo Service provider shall Subject to any other law for the time being in force, shall not charge any rent or demurrage on the goods seized or detained or confiscated by the Superintendent of Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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