TMI Blog2022 (8) TMI 841X X X X Extracts X X X X X X X X Extracts X X X X ..... 110 of Customs Act 1962 may pending adjudication can be released provisionally on taking bond with security or such conditions as may be required - No doubt in terms of section 121 of Customs Act, the sale proceeds of smuggled goods shall be liable to confiscation, but apparently the said provision shall not be applicable to the present case wherein there is no allegation of goods imported in question to be smuggled one. The allegations against the importing firm are that the goods as have been imported are undervalued. The Hon ble Apex Court in the case of Gurmukh Singh vs UOI [ 1983 (12) TMI 69 - HIGH COURT OF PUNJAB AND HARYANA, CHANDIGARH ] has held that where there is nothing to prove that the amount which is sought to be confiscated is sale proceed of smuggled goods, that must be returned to the person from whom it is seized and authorities are not empowered to take said money into custody. The said money has been taken into custody as on the sole consideration that the appellant is beneficial owner of the goods imported by M/s. Rudra Overseas. The correctness of the said allegation has yet to undergo the test of truth. Hon ble Apex Court also in the case of Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow up action of the aforesaid seizure on 28.11.2019 during the course of said search Indian currency of Rs.82,67,900/- and USD 5000 was found which were retained by the officer of DRI, IZU , Indore under Panchnama dated 28.11.19 alleging the same as sale proceed of the import of aforesaid goods by M/s. Rudra Overseas. Pursuant to directions of Hon ble High Court of Madhya Pradesh in a civil Writ petition No. 2315 of 2020 filed by appellant that the goods were ordered to be released by Commissioner of Customs, Indore vide letter dated 27.4.2020, however, on execution of bond valued at Rs.86,22,915/- and on furnishing of a Bank guarantee of 1,38,19,048/-. These directions were challenged before CESTAT order being non-speaking and arbitrary. Vide Final Order of this Tribunal bearing No. 50849 /2020 dated 24.9.2020 this Tribunal directed the Commissioner to pass speaking order while considering the request of provisional release and to not to dispose of the goods prior that. Based thereupon the order of provisional release of goods was passed by the Commissioner of Customs, Indore on 8.10.2020. However, the currency seized from appellant s residence alleging it to be the sale procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and appeal is prayed to be allowed. 4. Per contra the learned Departmental Representative relies upon the order under challenge. With respect to the issue of show cause notice to the appellant, learned Departmental Representative opted not to make any further submissions. However, appeal is prayed to be dismissed. 5. After hearing the parties and perusing the entire record, it is observed and held as follows: From the show cause notice issued to the appellant on 30.12.2020 i.e. after the order under challenge was passed, it is apparent that appellant has been mentioned to be a bonafide owner of the goods imported by the importer M/s. Rudra Overseas. The said allegations have been leveled based upon the submissions of proprietor of M/s. Rudra Overseas namely M/s. Shri Sanjay Punjabi as well as the data as was retrieved from the laptop of said Sanjay Punjabi. Whether or not the allegations leveled in the Show Cause Notice stands the fate of truth is not the subject matter of present adjudication which is confined merely to the question as to whether the currency notes seized from the premises of the appellant despite being alleged to be sale proceeds of the imported goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eas. The correctness of the said allegation has yet to undergo the test of truth. As evidence are without any comments on those. However keeping into consideration the aforesaid section, i.e. section 110A and 2 (22) of Customs Act, it is held that statute has a provision permitting provisional release of the goods against certain security / bond and as condition as may be deemed fit by the competent authority. In addition, there also has been CBIC Circular No. 35 /2017 dated 16.8.2017 laying guidelines for provisional release of seized goods under section 110 of Customs Act, 1962, according to which there is no bar on provisional release of the Currency even if it is observed that no formal seizure order has been passed. Rather no seizure memo has been generated, there appears no reasonable ground for confiscation thereof. Above all, the goods for which the impugned currency is alleged to be the sale proceeds, already have been provisionally release in favour of the importer against furnishing of bank guarantee and execution of bond as directed. The issue has earlier being dealt by this Tribunal in the case of Promod Auto Parts Pvt Ltd. vs Commissioner of Customs and Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds as ordered on 16-8-2011 is not authorized by the law. Hence, applying a different treatment for the currency which is seized as goods (sale proceeds of non-duty paid goods) is not legally sustainable. Hon ble Apex Court also in the case of Commissioner of Customs New Delhi vs. Euroasia global reported as [2009 (236) ELT 627 (SC)] has considered the question as to whether mis-declaration of description and value constitute smuggling as defined under section 2(39) of Customs Act, 1962, the question was decided in negative. Further the release of currency notes was stayed but for the reason that the Hon ble High Court had granted unconditional release of cash. The Hon ble Delhi High Court in the case of Tripta Sharma vs Commissioner of Customs, New Delhi reported as [2002 (145) ELT 519] that the seized currency has to be released when owner thereof has claimed. Hon ble Supreme Court in the case of Dr. Pratap Singh vs Director of Enforcement, reported as [AIR 1985 SC 989] has held that to contend about the reason to believe is not synonymous with subjective satisfaction and the Court can examine whether the reason to believe is held in good faith. 6. In view of the entire a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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