TMI Blog2022 (5) TMI 590X X X X Extracts X X X X X X X X Extracts X X X X ..... s shall be provisionally released in favour of the writ applicants - application disposed off. - R/SPECIAL CIVIL APPLICATION NO. 1796 OF 2022 - - - Dated:- 28-4-2022 - HONOURABLE MR. JUSTICE J.B.PARDIWALA AND HONOURABLE MS. JUSTICE NISHA M. THAKORE MR TIRTH NAYAK FOR THE PETITIONER MR DHAVAL D VYAS FOR THE RESPONDENT ORDER PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA 1 By this writ application under Article 226 of the Constitution of India, the writ applicants have prayed for the following reliefs: (A1) the Respondents to forthwith release the consignment imported under Bill of Exchange No. 4964569 by the Petitioner; (A2) quash and set aside the communication dated Annexure-A issued by the Respondents No. 2 in so far as the same pertains to the Petitioner No.1; (A3) command the Respondents and/or its concerned officers to pay/refund detention/demmurage/shipping charges paid by the Petitioner No. 1. In the Alternative Direct the Respondent No. 1 authority to waive the detention/demurrage/shipping charges payable by the Petitioner No. 1. (B) During the pendency and final disposal of this petition, (1) stay the impleme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erned. He would submit that the goods in question are neither prohibited nor restricted. However, Mr. Nayak pointed out that there appears to be a policy that if the goods are imported from Pakistan, then there shall be a levy of 200% duty on such goods. He reiterated that the goods have not been imported from Pakistan, but those have been imported from Abu Dhabi. He further pointed out that in the past, five times such type of goods have been imported by the writ applicants without any question at the end of the respondents. 4 Let Notice be issued to the respondents, returnable on 3rd February 2022. Direct service is permitted. 5 In the meantime, Mr. Nayak shall furnish one set of his entire paper book to Mr. Devang Vyas, the learned Additional Solicitor General of India, who would be appearing for the respondents. 6 On the returnable date, notify this matter on top of the Board. 3 Thereafter, the following order came to be passed on 10th February 2022: 1. We have heard this matter for quite some time. We recollect that this is a litigation in which the Customs Department has not permitted the writ applicant to clear the goods said to have been importe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l duty and deposits with the proper officer such sum not exceeding twenty per cent of the provisional duty, as the proper officer may assess the duty on the goods provisionally at an amount equal to the provisional duty. 6. It is not in dispute that till this stage, there has been no seizure of the goods under Section 110 of the Customs Act. If there would have been a seizure under Section 110 of the Customs Act, then probably the writ applicant could also have moved an application for provisional release of the goods under Section 110-A of the Customs Act. Regulation 2 of the Regulations 1963 referred to above would come into play when the proper officer on account of any of the grounds specified in Sub-section 1 of Section 18 of the Customs Act is not able to make a final assessment of the duty on the issue of imported goods. Section 18 of the Customs Act provides for the provisional assessment of duty. Section 18(1) reads thus: 18. Provisional assessment of duty [1] Notwithstanding anything contained in this Act but without prejudice to the provisions of Section 46 [and section 50] (a) where the importer or exporter is unable to make self-assessment u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this matter for further hearing on 03.03.2022 of top of the Board. 4 Thereafter, on 31st March 2022, the following order was passed: 1 We have heard the learned counsel appearing for the respective parties for quite some time. 2 Both the matters have been adjourned time to time only on one ground that the inquiry as regards the origin of the goods is still in progress. To recapitulate the facts, the controversy involved in the present litigation is whether the writ applicants imported the goods which are in the nature of Magnesium lump from UAE or the Turkey. The case of the Revenue is that the goods have travelled from Pakistan. If the goods have travelled from Pakistan, then the levy of duty shall be at the rate of 200%. Whereas if the goods have travelled from UAE, then the levy of duty shall be at the rate of 5%. 3 The Revenue is not able to make any headway so far as this inquiry is concerned. The goods are lying at the customs warehouse past almost more than seven months. We explore the possibility of passing an interim order releasing the goods subject to certain terms and conditions. However, the writ applicants are not in a position to furnish any ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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