TMI Blog2022 (6) TMI 629X X X X Extracts X X X X X X X X Extracts X X X X ..... oods unconditionally. Ultimately, they fairly submitted that the same were raised only for academic interest and the Act was subsequently, amended and the subject matter in issue is pending consideration before the Hon'ble Supreme Court. It is also submitted that the subject goods lying in the custody of the Department, which are perishable in nature, have now, become obsolete and therefore, the same are of negligible value. This court is of the opinion that no further orders need be passed with respect to release of the subject goods at this stage, except directing the appellants to complete the adjudication proceedings, if not completed earlier, and pass appropriate orders, on merits and in accordance with law, as expeditiously as possible - Appeal disposed off. - Writ Appeal No. 891 of 2016 And CMP. No. 11371 of 2016 - - - Dated:- 9-6-2022 - Honourable Mr. Justice R. Mahadevan And Honourable Mr. Justice J.Sathya Narayana Prasad For the Appellants : Mr. R. Sankara Narayanan Additional Solicitor General of India assisted by Mr. A.P. Srinivas Senior Standing Counsel For the Respondent : Mr. B. Sathish Sundar JUDGMENT R. MAHADEVAN, J. This intra- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irecting the appellants herein to assess and clear the imported goods. By order dated 17.08.2015, the aforesaid writ petition was disposed of, directing the respondent/writ petitioner to submit a fresh application within one week and on receipt of the same, the appellants herein were directed to decide the claim of the respondent/writ petitioner for release of the goods within a period of three weeks thereafter. 2.4. Pursuant to the aforesaid order dated 17.08.2015 made in WP.No.22173/2015, the respondent/writ petitioner approached the third appellant for provisional release of the goods. Following the same, they were issued with a communication dated 07.10.2015 in F.No.S.Misc.165/2015-Gr.6, informing that the Adjudicating Authority accepted for provisional release of the goods in terms of Section 110A of the Act, subject to the conditions that the respondent would execute a bond for full value of the goods viz., Rs.96,12,271/-, besides furnishing a bank guarantee for Rs.28,61,358/- representing 110% of estimated duty evasion amount. Stating that the conditions so imposed by the appellants were onerous and unreasonable, the respondent/writ petitioner filed another writ petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that non-issuance of show cause notice within a period of six months as per section 124(a) of the Act, would vitiate the provisional order passed by the third appellant on 07.10.2015 for release of the imported goods, cannot be allowed to be sustained. The learned counsel also placed reliance on the following decisions: (i) Chaganlal Gainmull v. Collector of Central Excise [1999 (109) E.L.T. 21 (SC)] wherein it was held by the Hon'ble Supreme Court that the delay beyond six months in the issue of the show cause notice goes to and affects the power to detain the seized goods beyond six months and does not denude the adjudicating authority of the power to initiate proceedings even thereafter . (ii) Jayant Hansraj Shah v. Union of India [2008 (229) E.L.T. 339 (Bom)] , in which, it was categorically observed by the Bombay High Court that it is only in the case where no provisional order is passed for release of seized goods and if no notice is issued under section 124(a) of the Customs Act, 1962, for confiscation of goods, then only would section 110(2) ibid apply and Department would be bound to release goods . 3.2. The learned Additional Solicitor General ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Judge in the second writ petition. 4.1. Per contra, the learned counsel for the respondent/writ petitioner would contend that the subject goods reached Chennai during April 2015 and the bill of entry along with other documentary details were immediately submitted by the respondent and the goods, upon examination by the second appellant, were found to be in order and as declared, but the same were not permitted to be cleared by the appellants. While so, the Appraiser attached to the office of the second appellant issued summons on 26.06.2015 for appearance of the Director of respondent/writ petitioner company on 04.07.2015, which was a Saturday. Thereafter, no show cause notice was issued by the appellants under the relevant provisions of the Act. Since there was enormous delay on the part of the appellants in clearing the goods in question and the same had caused prejudice to the respondent / writ petitioner in honouring their business commitments, they filed WP.No.22173/2015 for a mandamus directing the appellants to release the goods and the said writ petition was disposed of on 17.08.2015, based on which, the respondent / writ petitioner made repeated requests for release ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been passed. Factually, in view of the onerous conditions, the petitioner did not avail the release of the goods pursuant to the passing of the order of provisional release. The consequence is that the goods remain under seizure. This being the position, in our opinion, the rigors of sub-section (2) of section 110 of the said Act will continue to apply as the character of the goods continue to be goods seized under sub-section (1). The proper officer then is obliged to follow the procedure prescribed in sub-section (2) of section 110 of the said Act, in that he has to issue notice under clause (a) of section 124 of the said Act within six months of the seizure of the goods. We have already observed that the notice under clause (a) of section 124 within six months of the seizure is not issued and therefore the consequence of release must follow. 20. Assuming that the competent authority in exercise of the powers conferred by the first proviso extends period so specified by subsection (2) of section 110 by a further period of six months, the maximum period during which the goods shall remain under seizure is 12 months from the date of seizure. The effect of non compliance of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decided within 3 weeks from the date of receipt of the application submitted by the petitioner. Consequent to the aforesaid order, by a communication dated 07.10.2015 sent by the third appellant / Assistant Commissioner of Customs, Group-6, Chennai, the respondent / writ petitioner was informed as follows: Please refer to your letter dated 17.08.2015 on the above subject. In this regard, the Adjudicating Authority has accepted your request for provisional release of goods in terms of section 110A of the Customs Act subject to following conditions: (i)Execution of bond for full value of goods i.e., for Rs.96,12,271/- (ii)Execution of Bank Guarantee for Rs.28,61,359/- i.e., 110% of estimated duty evasion amount. Concededly, the aforesaid order dated 07.10.2015 was neither complied with nor challenged by the respondent / writ petitioner, till date. Without doing so, they came forward with another writ petition, viz., WP.No.34581 of 2015 to issue a writ of mandamus for the release of the subject goods in terms of section 110(2) of the Act. By order dated 02.06.2016, which is impugned herein, the learned Judge allowed the aforesaid writ petition and directed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Customs Act and the same has been acceded to by the respondent, the same would not take away the right of the petitioner for unconditional release of the goods under Section 110(2) of the Customs Act. The right under Section 110(2) of the Customs Act is absolute and cannot be curtailed or prevented by the Department. That apart, the Circular issued by the Ministry of Finance dated 19.02.2013 also supports the case of the petitioner. Questioning the aforesaid order passed by the learned Judge in WP.No.34581 of 2015, the instant intra-court appeal came to be filed by the appellants/ revenue. 7. During the course of hearing, the learned counsel appearing for both sides made elaborate arguments, citing case laws, for and against the impugned order passed by the learned Judge, in directing the appellants to release the subject goods unconditionally. Ultimately, they fairly submitted that the same were raised only for academic interest and the Act was subsequently, amended and the subject matter in issue is pending consideration before the Hon'ble Supreme Court. It is also submitted that the subject goods lying in the custody of the Department, which are perishable in natu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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