TMI Blog2021 (5) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... ity, a final decision is to be rendered, it is pre-matured to interfere with the show cause notice by the court. Although, the Court has wide powers under Article 226 of the Constitution and it can also exercise in certain circumstances at the stage of issuance of show cause notice (when the show cause notice is totally non est etc.) Accordingly such powers are not to be exercised by the Court and this approach of self restraint and self limitation is adopted by the High Court always and that being a well settled position of law, no further dilation is needed. The writ jurisdiction under Article 226 is not to be entertained against the show cause notice when statute provides for mechanism which is efficacious, alternative and productive as the very purpose of issuance of show cause notice to afford opportunity of hearing to the party concerned and on showing of the cause to the statutory authority, a final decision is to be rendered, it is pre-matured to interfere with the show cause notice by the court. Although, the Court has wide powers under Article 226 of the Constitution and it can also exercise in certain circumstances at the stage of issuance of show cause notice (when t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 07.09.2020: 1. By this writ application under Article 226 of the Constitution of India, the writ applicants have prayed for the following reliefs; (A) YOUR LORDSHIPS may be pleased to issue a writ of Certiorari or writ n the nature of certiorari quashing and setting aside the detention and seizure dated 29.07.2020 (Annexure-H Colly), dated 03.08.2020 (Annexure-L M) 11.08.2020 (Annexure-W Colly); (B) In addition to and in alternate to relief (A) above, Your Lordships may be pleased to direct the Respondents their servants and agent to release the goods provisionally, on such terms and conditions that this Hon ble Court deems proper; (C)) During the pendency and final disposal of the present petition, Your Lordships may be pleased to stay the implementation of the Detention/ Seizure dated 29.07.2020 (Annexure-H Colly), 03.08.2020 (Annexure-L M) 11.08.2020 (Annexure-W Colly); (D) This Hon ble Court may be pleased to release the goods under detention and Seizure pending hearing and final disposal of this petition on such condition as are deemed proper; (E) An ex-parte ad-interim relief in terms of Para 8(C ) 8(D) above may kindly be granted on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 30th June, 2017 was not available in respect of the Copper Scrap Barely/Birch in which case the said duty is required to be paid at the rate of 5% and, therefore, the assessable value needs to be re-assessed in view of the different prices of respective types of scrap. It also appears from the materials on record that the finished goods, i.e., after dismantling/segregated scrap of 78710.6 Kgs of the estimated value of ₹ 1,72,25,108/- of the ownership of M/s. CMR Chiho Recycling Technologies Pvt. Ltd stored in the premises of their sister concern, namely, M/s. CMR Chihor Industries Pvt. Ltd, was also seized on 29th July, 2020 under the Panchnama dated 29th July, 2020. 6. It further appears that the entire matter, at present, is under the investigation of the DRI. The Deputy Director, DRI, Zonal Unit has issued No Objection for the provisional release of the seized goods on 03.08.2020 and 11.08.2020 respectively. 7. The importer, i.e, the writ applicant No.1 applied for the provisional release of the seized goods vide their application dated 05.08.2020. Upon receipt of the application, the same was processed. The provisional release of the seized goods has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of provisional release of the goods is appealable under the provisions of the Customs Act, 1962. 12. According to Mr. Parikh, the order of seizure is not appealable and the only remedy for his clients is to come before this Court invoking its writ jurisdiction under Article 226 of the Constitution of India. 13. Mr. Parikh would submit that, as on date, the business of the Company has come to a standstill. The seizure of the goods by the Department has virtually brought the entire Industrial Unit to a grinding halt. Almost 250 workers are without wages as there is no work with the Company because of the seizure of the goods. He would submit that if the Company is asked to furnish the Bank Guarantee to the tune of ₹ 8.46 Crore, then the Company will have to raise the requisite balance in their Bank Account of such amount. He would submit that only thereafter the Bank would issue a Bank Guarantee. Mr. Parikh would submit that having regard to the present scenario, even otherwise, the company is facing acute financial crunches. 14. Mr. Parikh, the learned senior counsel submitted that the larger issues involved in this writ application including the issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.765 _ 139- 141 4. CCIIPL 11.08.20 ICD _ 3,22,56,787. 02 13.08.20 05.09.20 128.00 39.68 322.56 78.99 _ 142- 145 5. CCRT 03.08.20 _ _ _ _ _ _ _ _ _ 9.72 106 6. CCIIPL 06.08.20 _ _ _ _ _ _ _ _ _ 200.61 100 Total 846.31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Total duty 7899687 Redemption Fine @ 10% of value of seized goods. 3225679 Penalty @ 5% of the value of seized goods. 1612839 Total 12738205 i.e. 1.28 Crore Bond Value Value of Goods seized 17225108 Bank Guarantee amount Entire amount of duty leviable on seized goods (Duty @ 2.5% + 10% Surcharge) 473690 IGST @ 18% 85264- Total duty 558954 Redemption Fine @ 10% of value of seized goods. 861255 Penalty @ 5% of the value of seized goods. 861255 Total 2281465 17. Having heard the learned counsel appearing for the parties and having gone through the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Director of Revenue Intelligence ('the DRI' for short), who is working as Deputy Director at DRI, wherein the contention has been raised that the petitioner unduly availed benefit of concessional rate of 2.5% Basic Customs Duty ('the BCD' for short) instead of 5% in terms of serial No.368 of Notification No.50/2017 CUS dated 30.06.2017. On the search being conducted of the premise of the petitioner and of the Customs Broker Firm, the Panchnama is drawn and the documents have been seized. The statement recorded of various persons also indicate how undue benefits have been reaped by the petitioner company. 6. Another company of the same group Century Metal Recycling i.e. of M/s.CMR CHIHO Recycling Technology Private Limited petitioner No.2 was operating from the very premise. The main work of both these companies was segregation of Copper, Aluminum and Iron/Steel scrap from imported motor scrap and segregation of Copper from different types of motors i.e. large motors, medium motors, small motors and those segregated manually by the labours. Mr.Navin Sharma the main officer handling operation was available and he explained that all imported goods received were no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les of base metal under the interpretative Rules) containing two or more base metal are to be treated as articles of the based metal predominating by weight over each of the other metals. 8.1 With Reference to ground C of the petition, it is submitted that, the respondent thoroughly considered Note 7 of Section XV of Customs Tariff. The said Note 7 is reproduced herein below for ready reference: Classification of composite articles: Except where the heading otherwise require, articles of base metal (including articles of mixed materials treated as articles of base metal under the interpretative Rules) containing two or more base metals are to be treated as articles of the base metal predominating by weight over each of the other metals. For this purpose: (a) Iron and Steel, or different kinds of iron or steel, are regarded as one and the same metal; (b) An alloy is regarded as being entirely composed of that metal as an allow of which, by virtue of Note 5, it is classified, and (c) A cermet of hading 8113 is regarded as single base metal. In view of the above Note 7, the respondent submits that Section XV of Customs Tariff covers commodities with h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t contended further that predominating nature of product will not be applicable in case of CTH 7204 as mentioned at Sr.No.368. Petitioner themselves have admitted that they are importing motor scrap consisting Iron Scrap 85%, Copper Scrap 10% and Aluminum Scrap 5%. Moreover, at the time of import, petitioner also furnishes certificates of analysis issued by seller and Form 9 which is presented for trans boundary movement document. Both of these documents contained three separate items/chapter heading however, invoice by seller is being issued with only one description i.e. Discarded and Non Serviceable Semi Broken Motor. Petitioner knowingly does not take into consideration the certificate of analysis and Form 9 intentionally to hide facts before the department and declare its value on the basis of invoice only. Respondent submits that petitioners have adopted this modus in a very planned and organised manner to avail benefit of concessional rate of duty of 2.5%. 8.5 With Reference to ground D of the petition, it is submitted that, petitioners have contended that they imported scrap electric motors, which has no specific tariff heading in the Customs Tariff Act. However, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not asked them to classify their product to three separate headings, but has challenged their declaration for benefit of concessional rate of duty i.e. 2.5% instead of effective rate of 5% by showing Sr.No.368 of Notification No.50/2017 CUS dated 30.06.2017 which is available for 'Melting scrap of iron or steel (other than stainless steel)', not on Copper scrap or Aluminum Scrap under this S.No.368. Respondent further submits that Copper scrap or Aluminum Scrap is far higher in value as compared to Heavy Melting Scrap of Iron or Steel. 9. It is, therefore, urged that the petitioner was well aware that the imported product cannot be termed as melting scrap of Iron and Steel falling under the CTH 7204. They are importing motor scrap consisting of Iron scrap 85%, Copper scrap 10% and Aluminum scrap 5%, but to avoid intentionally 5% value on the rate of duty of 5% on the assessable value, they have declared the entry filed under Section 46 of the Customs Act. The petitioners used to import their goods under three separate headings of different scraps and subsequently they shifted to one tariff heading merely changing the description of their imported goods to one descriptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not agreeable, they can always have an option to file an appeal in terms of Customs Act. The detentions and seizures made by the respondent No.3 since are in accordance with law, the petition is merit less. 14. affidavit- in- reply for and on behalf of the respondent No.2 also dealt with the same issue and insisted that the importer has applied for provisional release of the seized goods, the provisional release of the goods has been given as under: (i) Goods seized under Seizure Memo No.03.08.2020 of M/s. CMR Chiho Recycling Technologies Pvt. Ltd., for quantity:78710.6 kgs valued at 17225108/ provisionally released on filling of Bond of full value of the goods i.e. 17225108/ with Bank Guarantee/Cash Security Deposit of ₹ 20,00,000/ . (ii) Goods seized under Seizure Memo No.03.08.2020 of M/s.CMR Chiho Industries Pvt.Ltd., for quantity:6884651 Kgs valued at 38,02,85,614/ provisionally release on filing of Bond of full value of the goods i.e. 38,02,85,614/ with Bank Guarantee/Cash Security Deposit of ₹ 6,94,00,000/ . (iii) Goods seized under Seizure Memo No.11.08.2020 of M/s.CMR Chiho Industries Pvt. Ltd., for Bill of Entry No.8262901 dated 24.07 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority has jumped to the conclusion that there is a mis declaration or mis representation. The detention and seizure of the goods, according to the petitioner, is without following the provision of law. The exercise of powers of seizure under Section 110 of the Act is arbitrary, without jurisdiction and therefore is illegal. The respondent failed to explain the rational to rush to the seizure of the goods. The proper officer cannot proceed to seize the goods under Section 110 of the Act, unless he has a reason to believe the goods are liable to confiscation and the reason for formation of belief must have a rational connection with or relevant bearing on the formation of the belief as the rational connection postulates that there must be a direct nexus between the materials coming to the notice of investigating officer and formation of his belief that the goods are liable for confiscation. 17. It is the say of the petitioner that the power conferred by Section 110 of the Act is a conditional power and not an absolute power to be exercised at the discretion of the officer. The condition is that there has to be a reason to believe and the safe belief should reflect that intense ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Central Excise vs. Wockhardt Life Science Limited, 2012 (277) ELT 299 (SC) 3 Northern Plastics Limited vs. Commissioner of Customs Central Excise, 1998 (101) ELT 549 (SC) 4 Commissioner of Customs, Calcutta vs. G.C. Jain, 2011 (269) ELT 307 (SC) 5 PSL Limited vs. Commissioner of Customs, Kandla, 2015 (328) ELT 177 (Tri-Ahmedabad), 6 Commissioner of Customs and C.Ex.Kanpur vs. Jas International, 2011 (272) ELT 282 (Tri-Delhi) 7 Krupa Chaton Mfg.Company Pvt. Ltd vs. UOI, SCA No.7499 of 2017 8 Eagle Impex Vs. CC, Kandla, 2017 (350) ELT 107 (Tri-Ahmd.) 9 Sarvalakshmi Paper and Board Vs.C.C., Madras, 2000 (126) ELT 935 (Tri-New Del.) 10. CC, Bombay vs. Hydranautics Membrance (India) Ltd., 1994 (71) ELT 711 (Tri.-New Del.) 11. T.G. Enterp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India, 2020 (372) ELT 542 (Pat.) 32 Fomento Resources Pvt. Ltd. vs. UOI, 2019(367) ELT 897 (Bom) 33 Baboo Ram Harucgabd vs, UOI, 2011 (270) ELT 356 (Guj.) 34 Mapsa Tapes Pvt Ltd vs. UOI, 2006 (201) ELT 7 (P H) 35 J.K.Barodolia Mills vs. M.L.Khunger, Deputy Coll., 1994 (72) ELT 813 (SC) 36 S.N.Mukherjee vs. Union of India, (1990) 4 SCC 594 37 East Ciast Railway Ors vs. Maha Dev Appa Rao Or, (2010) 7 SCC 678 38 Sama Aruna vs. State of Telangana Anr, (2018) 12 SCC 150 22. The first and foremost vital issue raised by learned Additional Solicitor General Mr. Vyas is as to whether this Court will have jurisdiction to entertain this petition in wake of the availability of the alternative efficacious remedy. As contended by the respondent, this petition is premature and the Courts have adopted restraint and have chosen not to intervene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court to adopt such a course unless the ends of Justice seem to make is necessary to do so? Normally, the questions of fact, though they may be jurisdictional facts the decision of which depends upon the appreciation of evidence, should be left to be tied by the Special Tribunals constituted for that purpose. If and after the Special Tribunals try the preliminary issue in respect of such jurisdictional facts, it would be, open to the aggrieved party to take that matter before the High Court by a writ petition and ask for an appropriate writ. Speaking generally, it would not be proper or appropriate that the initial jurisdiction of the Special Tribunal to deal with these jurisdictional facts should be circumvented and the decision of such a preliminary issue brought before a High Court in its writ jurisdiction. We wish to point out that in making these observations, we do not propose to lay down any fixed or inflexible Rule; whether or not even the preliminary facts should be tried by a High Court in a writ petition, must naturally depend upon the circumstances of each case and upon the nature of the preliminary issue raised between the parties. Having regard to the circumsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner should invariably be directed to respond to the show cause notice and take all stands highlighted in the writ petition. Whether the show cause notice was founded on any legal premises, is a jurisdictional issue which can even by urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the court. Further, when the court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose and are denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is not accorded to the writ petitioner even at the threshold by the interim protection granted. 16. This aspect of the matter has recently been considered by this Court in Union of India and Anr. v. Kunisetty Satyanarayana, (2006) 12 SCALE 262. 24.2. It is thus quite clear that the writ jurisdiction under Article 226 is not to be entertained against the show cause notice when statute provides for mechanism which is efficacious, alternativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct was valid under the law. 25.3. The consignment of cameras arrived at Delhi, the importer submitted a Bill of entry covering letter and literature containing specification of the cameras and after verification of the Bill of Entry by the Inspector and the Superintendent, the importer requested the Deputy Commissioner of Customs to check the same. The compilation of the goods with the description given in the literature also was carried out and the goods had been cleared as being exempted from paying the duties in terms of Notification No.15/2012 issued on 17.03.2012. 25.4. A show cause notice was issued under Section 28(4) of the Act alleging that the Customs Authorities had been induced to clear the cameras by willful mis statement and suppression of the facts about the cameras. The decision of exemption was by the Deputy Commissioner, Air Cargo, the show cause notice was issued by the Additional Director General, DRI. The Apex Court addressed the issue as to whether the DRI had authority in law to issue a show cause notice under Section 28(4) of the Act for recovery of the duties not levied nor paid when the goods were cleared for import by a Deputy Commissioner of Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in exercise of its powers under section 6 of the Act. Moreover, the notification which purports to entrust functions as proper officer under the Customs Act has been issued by the Central Board of Excise Customs in exercise of non existing power under sub section (34) of section 2 of the Customs Act. The Apex Court declared the notification as invalid, the same having been issued by an authority which had no power to do so, in purported exercise of powers under a section which does not confer any such power. 25.7. Relevant findings and observations of the M/S.CANNON INDIA PRIVATE LIMITED V/S. COMMISSIONER OF CUSTOMS are necessary to be reproduced at this juncture profitably hereinbelow: 14. It is well known that when a statute directs that the things be done in a certain way, it must be done in that way alone. As in this case, when the statute directs that the proper officer can determine duty not levied/not paid, it does not mean any proper officer but that proper officer alone. We find it completely impermissible to allow an officer, who has not passed the original order of assessment, to re open the assessment on the grounds that the duty was not paid/not levie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In support of the contention that he has been so entrusted with the functions of a proper officer under Section 28 of the Customs Act, Shri Sanjay Jain, learned Additional Solicitor General relied on a Notification No.40/2012 dated 2.5.2012 issued by the Central Board of Excise and Customs. The notification confers various functions referred to in Column (3) of the notification under the Customs Act on officers referred to in Column (2). The relevant part of the notification reads as follows: [To be published in the Gazette of India, Extraordinary, Part II, Section 3, Sub section (ii)] Government of India Ministry of Finance (Department of Revenue) Notification No.40/2012-Customs (N.T.) New Delhi, dated the 2nd May, 2012 S.O. (E). In exercise of the powers conferred by sub section (34) of section 2 of the Customs Act, 1962 (52 of 1962), the Central Board of Excise and Customs, hereby assigns the officers and above the rank of officers mentioned in Column (2) of the Table below, the functions as the proper officers in relation to the various sections of the Customs Act, 1962, given in the corresponding entry in Column (3) of the said Table: Sr.No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment or a local authority any functions of the Board or any officer of customs under this Act. 21. If it was intended that officers of the Directorate of Revenue Intelligence who are officers of Central Government should be entrusted with functions of the Customs officers, it was imperative that the Central Government should have done so in exercise of its power under Section 6 of the Act. The reason why such a power is conferred on the Central Government is obvious and that is because the Central Government is the authority which appoints both the officers of the Directorate of Revenue Intelligence which is set up under the Notification dated 04.12.1957 issued by the Ministry of Finance and Customs officers who, till 11.5.2002, were appointed by the Central Government. The notification which purports to entrust functions as proper officer under the Customs Act has been issued by the Central Board of Excise and Customs in exercise of non existing power under Section 2 (34) of the Customs Act. The notification is obviously invalid having been issued by an authority which had no power to do so in purported exercise of powers under a section which does not confer any such p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the agent or employee of the importer or exporter, the provisions of this sub section shall have effect as if for the words one year and six months , the words five years were substituted. 18. It is plain from the provision that the proper officer being subjectively satisfied on the basis of the material that may be with him that customs duty has not been levied or short levied or erroneously refunded on an import made by any individual for his personal use or by the Government or by any educational, research or charitable institution or hospital, within one year and in all other cases within six months from the relevant date, may cause service of notice on the person chargeable, requiring him to show cause why he should not pay the amount specified in the notice. It is evident that the notice under the said provision has to be issued by the proper officer . 19. Section 2(34) of the Act defines a proper officer , thus: 2. Definitions. (34) proper officer , in relation to any functions to be performed under this Act, means the officer of customs who is assigned those functions by the Board or the Commissioner of Customs; It is clear from a mere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cated under Section 111 of the Act. He has further urged that if the assessee makes the fullest disclosure than the mere wrong claim of classification or wrong claim of the exemption, is not mis declaration as contemplated under Section 111(M). 26.1 He has also relied on the judgment rendered in case of PSL Limited vs. Commissioner of Customs, Kandla, reported in 2015 (328) ELT 177 to contend that it is not expected by the assessee to fill in the correct classification or exemption as held in 2011 (269) ELT 307 (SC). It is for the department to find the correct legal position as to the classification if, the department allows clearance, then the importer cannot be held responsible. He has therefore urged that subjective satisfaction must show that it is not a case of mere wrong case of exemption or wrong classification, but the assessee not having disclosed all relevant informations and having to defraud the department. A mere different view as to the classification and exemption, when otherwise all facts are known to the department beforehand cannot enable the department to seize the goods as the same surely would not amount to mis declaration nor would it render the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usly urged this Court that the intelligence received made it abundantly clear as to how the petitioner attempted to mis declare the goods, leading to enormous loss to the revenue and such misstatement itself is a cause of issuance of show cause notice which would be aptly dealt with by the statutory authority and this Court need not regard the request of any interference. 27.1 Learned ASG has also further contended before this Court that petitioner was fully conscious that their imported product 'Discarded and non serviceable semi broken motor cannot be termed as melting scrap of iron or steel. Their scrap consist of 85% iron scrap, 10% of copper and 5% of Aluminum scrap. However, to avoid payment of 5% rate of duty on assessable value, it has chosen not to declare correct details in the bills of entry from three separate headings, it chose to club under one tariff heading by deliberately changing description of their imported goods so as to let it fall under classification CTH 7204 49 00 under the other Ferrous Waste and Scrap and thereby availed undue benefit of concessional rate of custom duty at the rate of 2.5% instead of 5% scrap what contended copper and aluminum and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of the seized goods vide letter dated 05.08.2020. It is quite obvious that at the time of import of the goods, the petitioner had declared the description of the product as Discarded in non serviceable motor scrap under Customs Tariff Heading 7204 49 00 under other ferrous waste and because of that 2.5% of rate of concessional duty had been made available under Notification 50/2017:CUS dated 30.06.2017. What is not being disputed is that the certificate of analysis and Form 9 as also other relevant materials had been placed before the Custom Authority which examined the same and cleared the goods of import. It was later on that the DRI with a reasonable belief that there was an undue benefit of the concessional rate of duty taken which resulted into the short payment of custom duty, placed the goods under detention and they were subjected to confiscation. It is quite obvious that the officer, who had permitted the import of the goods is not the one who had formed a reasonable belief of the petitioner having taken undue benefit of the concessional rate of duty. It is the officer of the DRI, who was not anywhere in the picture when the import took place, had acted and detain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onths after once the seizure of the goods takes place under Section 110 (1) of the Act. 32.4 Section 124 of the Act provides for issuance of show cause notice before the confiscation of the goods and states that no order of confiscation or imposing of any penalty on any person shall be made under this chapter unless the owner of the goods or such person (a) is given a notice in writing with the prior approval of the officer of Customs not below the rank of an Assistant Commissioner of Customs informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty; (b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation or imposition of penalty mentioned therein; and (c) is given a reasonable opportunity of being heard in the matter, Provided that the notice referred to in clause (a) and the representation referred to in clause (b) may at the request of the person concerned be oral. Provided further that notwithstanding the issuance of notice under this section, the proper officer may issue a supplementary notice under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han stainless steel) falling under Customs Heading 72044900. They have admitted that they are importing the motor scrap consisting Iron Scrap 85%, Copper Scrap 10% and Aluminum Scrap 5% in approximate. They are alleged of intentionally not declaring their products properly in the bills of Entry at the time of import under Section 46 of the Act in terms of Section 17 of the Customs Act. Section 17 provides that an importer entering any imported goods under Section 46 or an exporter entering any export goods under Section 50 of the Act shall save as otherwise provided in Section 85, self assess the duty, if any, leviable on such goods. 35. Admittedly, the description in the Bill of Entry Discarded and non serviceable semibroken motor scrap even on inspection of the goods were found exactly as entered into the Bill of Entry i.e. discarded and non serviceable broken motor scrap. The only reason after having allowed the import for not allowing the benefit of reduced rate of duty is because the Copper scrap and the Aluminum scrap in the material imported to the extent of 10% and 5% respectively and approximately could be taken out eventually from these broken motors. That essentiall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy made available by the petitioner. Thus, on the count of the DRI officer not being a proper officer under the law as the action on the part of the officer of DRI is not to be sustained. Again, assuming that he would have powers to reassess the very fact that entire material was with the assessing officer, it was for him to assess otherwise. Besides, vide notification issued by the Central Board of Excise Customs, that is, notification no. 40/2012 Customs (NT) dated 2.5.2012 and more particularly, item no.6 whereby, the Intelligence Officer in the Director General of Revenue Intelligence and Directorate General of Central Excise Intelligence, have been assigned the powers of various sections including the powers under sub section (1) and (2) of section 110 of the Act, which notification has been considered by the Apex Court with reference to assigning the powers of section 28 of the Act and has been held to be invalid. The learned counsel for the Union, could not dispute the said proposition as well as the applicability of the judgment to the facts of the present case, therefore, applying the principles enunciated in the case of Canon India Private Ltd (supra) the petition des ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port of the goods as clandestinely having been done, the least that could have been done was to term the same as mala fide when otherwise the relevant material had been already placed with the department. 38.1 As mentioned herein above, the communication dated 03.08.2020 in post clearance audit of Bill of Entry was on the basis of various documents including the certificate of analysis, when it was realized by the department that the product consists of the Copper scrap also to the extent of around 10%. The DRI has firstly detained the goods, which later on had been seized. Assuming that the stage of adjudication of show cause notice is yet to come, this Court has no intent to go into the issue of classification at all as it would be for the proper officer to workout the same on following the due procedure and on requisite scrutiny however, noticing that the order of detention and seizure by the DRI itself is unsustainable, we allow the petition by quashing and setting aside the seizure and the panchnama. 38.2 Resultantly, this Petition is allowed, quashing and setting aside the detention and seizure dated 29.07.2020 (Annexure- H ), dated 03.08.2020 (Annexure- L M) 11.08. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
