TMI Blog2021 (2) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... importer which will be the subject matter of investigation. Both the issues relate to two different parties. On perusal of the extracts of statements reproduced in the show cause cum demand notice dated 29.09.2020, it prima facie, appears that though the petitioner's vehicle was hired for transportation of the seized goods, petitioner had no direct or indirect role in so far as the tampering and removal of goods was concerned - the grievance of the petitioner expressing hardship on account of availing bank loan for purchase of the seized vehicle; that he is paying monthly EMI of ₹ 33,437.00 to the bank; since 04.11.2019 his vehicle is lying stationery and not in use; it was his only source of income and he has no connection with the importer needs consideration. The impugned action of seizure of the petitioner's vehicle No.MH-46-H- 1284 as well as the order for provisional release of the vehicle calls for interference - The provisional release order dated 14.07.2020 at Exhibit 'D' to the writ petition for release of vehicle No.MH-46-H-1284 of the petitioner is modified as under:- a. The petitioner shall furnish a bond for 10% of the value of goods seize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transport vehicle i.e. a trailer bearing Registration No. MH-46-H-1284. 4.2. M/s. Atharv Enterprises having IEC No.BAPPG8916F was involved in illegal import of counterfeit branded goods by misdescribing them as unbranded goods. One such consignment of the importer arrived under bill of entry No.4862811 dated 11.09.2019 and was lying at M/s ICT PL Customer Freight Station (CFS), Nhava Sheva. On verification of bill of entry it was found that the address of the importer was incorrect, hence the container bearing No.WHSU5263834 was put on hold on 16.09.2019. On examination of the consignment, it was found that the consignment not only contained the declared items, but also contained other items which were not declared. Therefore, the entire shipment was liable for confiscation. Accordingly there were seized. The seized goods alongwith the container were thereafter handed over to ULA, CFS Uran. 4.3. Request letter dated 25.09.2019 was received from the importer to shift the seized goods to a warehouse under Section 49 of the Customs Act, 1962 (hereinafter referred to as the Customs Act ). 4.4. Importer booked the petitioner's vehicle on 24.10.2019 through an agent f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditions which are extracted hereunder :- I. The applicant will execute a bond of ₹ 75,00,000/- (Rupees Seventy Five Lakh Only) being the value of the goods that were being smuggled. II. The applicant will produce a bank guarantee for 30% of the value of the goods i.e. ₹ 22,50,000/- (Rupees Twenty Two Lakh Fifty Thousand only). III. The applicant will produce a No Objection Certificate from the APMC police station in respect of release of the said vehicle. 4.11. Being aggrieved by the seizure of the vehicle since 04.11.2019; that the conditions in the impugned order are onerous and that the petitioner had no nexus with the importer and unnecessarily being harassed; present petition has been filed. 5. Respondents in their common reply affidavit have taken the stand that the vehicle in question was found to have carried smuggled imported goods and thus was rightly seized. However, on request of the petitioner respondents have allowed provisional release of the seized vehicle, but petitioner has failed to comply with the conditions of provisional release. Since the vehicle was used to transport smuggled goods, it is liable for confiscation unless ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... innocent and no mala fides can be attributed to the petitioner. Order dated 14.07.2020 for provisional release of his vehicle is onerous for several reasons; Petitioner is not in a position to execute a bond for ₹ 75,00,000/- as called upon by respondent No.3 as he is a person of small means; the goods never belonged to the petitioner nor were imported by the petitioner and therefore the condition for execution of bond by the petitioner is not only onerous but arbitrary and high handed. That apart, petitioner has been called upon to produce bank guarantee to the tune of ₹ 22,50,000/- which is again highly onerous in as much as the cost of the detained vehicle itself is ₹ 9,50,000/- for which the petitioner had availed auto loan. In view of the petitioner s status he is not in a position to meet the preconditions stated in the order of provisional release of vehicle and therefore has approached this Hon ble Court to seek release of his vehicle by setting aside the provisional release order. 7. PER-CONTRA, Mr. Pradeep Jetly, learned Senior Counsel appearing for respondent No.3 has drawn our attention to the affidavit in reply dated 13.01.2021. According to him pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is able to account for the loss of, or deficiency in, the goods. Section 115(2) states that any conveyance used as a means of transport in the smuggling of any goods shall be liable to confiscation unless the owner of the conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent and the person in charge of the conveyance. Proviso to the above section states that where any such conveyance is used for the carriage of goods or passengers for hire the owner of any such conveyance shall be given an option to pay in lieu of the confiscation of the conveyance a fine not exceeding the market price of the goods which are sought to be smuggled or the smuggled goods, as the case may be. 11. Section 110(2) of the Customs Act provides for return of the seized goods when no notice is given under clause (a) of Section 124 within six months of seizure of the goods though as per the proviso the period of six months can be extended for a further period not exceeding six months. At this stage, we may also mention that under sub-section (1), if the proper officer has reason to believe that any goods are liable to confiscation under the Customs Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Board that cases where Provisional Release of seized goods is allowed under Section 110A of the Act ibid, show cause notices are not being issued within the stipulated time period on the ground that the goods have been released to the owner of the goods. The provisions of the Customs Act, 1962 are clear that irrespective of the fact whether goods remain seized or are provisionally released, once goods are seized, the time period (including extended time period) stipulated under Section 110(2) of the Act shall remain applicable and has to be strictly followed. 14. A conjoint reading of the above provisions along with the above instructions dated 08.02.2017 issued by the Central Board of Indirect Taxes and Customs would go to show that the concerned authority is required to issue show cause notice within six months of seizure failing which the seized goods shall be returned to the person from whose possession those were seized. In the instant case vehicle of the petitioner was seized on 04.11.2019. Respondents issued show cause notice dated 29.09.2020 to the importer and Clearing House Agent (CHA) but failed to issue show cause notice to the petitioner. Petitioner has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Customs Act, wherein he stated as under : i. He works on free-lance basis for CHA or major clearing agents as they are not able to reach Nhava Sheva on regular basis and thus they assign him small work such as clearing and forwarding. ii. The clearing / dispatch work of M/s Atharv enterprises was given to him by Shri Jayesh Bhanushali whose mobile number is 9820281973. He was asked to transport the container to CWC Godown, Turbhe from ULA CFS. iii. Since there was no escort with the Vehicle he got encouraged to try and decamp some goods in order to earn fast money as he needed money for his son s treatment. iv. He took the driver to Godown no./10, building no.K-3, Jay Shree Ram Complex, Dapoda Road, Bhiwandi and asked him to relax and have tea as he had driven the whole night. v. Once the driver left he cut open to seal and decamped small cartons. He thereafter sealed the customs seal with feviquick. Since the cut could be seen he applied some candle wax thereon to hide the same. vi. He did not expect it to be checked thoroughly at CWC Godown but due to rains the glue did not hold properly and the seal came out when the officials checked the same. Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... izance of the grievance of the petitioner has rendered such action highly questionable. 19. That apart it is clearly discernible that there is a clear distinction between the conveyance used to transport the seized goods and the action of the importer which will be the subject matter of investigation. Both the issues relate to two different parties. On perusal of the extracts of statements reproduced in the show cause cum demand notice dated 29.09.2020, it prima facie, appears that though the petitioner's vehicle was hired for transportation of the seized goods, petitioner had no direct or indirect role in so far as the tampering and removal of goods was concerned. We may also mention that the entire tampered goods have been subsequently recovered and seized following disclosure made by Shri Kanhaiya Hurbada, employee of the clearing house agent, who owned up the mischief. 20. In the light of the above, the grievance of the petitioner expressing hardship on account of availing bank loan for purchase of the seized vehicle; that he is paying monthly EMI of ₹ 33,437.00 to the bank; since 04.11.2019 his vehicle is lying stationery and not in use; it was his only source ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
