TMI Blog2022 (9) TMI 447X X X X Extracts X X X X X X X X Extracts X X X X ..... envisage release of goods provisionally in favour of an importer of goods much less does it envisage, a release in favour of any person , in addition to the owner as mentioned in Section 124 of the Act, who has been served a notice under the said section - the Tribunal has in fact committed an error in importing the definition of an importer as defined under Section 2(26) of the Act and reading the same in Section 110A of the Act. Appeal allowed. - CUSTOM APPEAL (L) NO. 20820 OF 2022 WITH INTERIM APPLICATION (L) NO. 20862 OF 2022 IN CUSTOM APPEAL (L) NO. 20820 OF 2022 - - - Dated:- 8-9-2022 - DHIRAJ SINGH THAKUR AND ABHAY AHUJA, JJ. Mr. Advait Sethna a/w Mr. Rangan Majumdar i/b Ms. Ruju Thakker, Advocates for the Appellant. Mr. Prakash Shah a/w Mr. Jas Sanghavi i/b PDS Legal, Advocates for the Respondent. (PER DHIRAJ SINGH THAKUR, J.): This is an appeal under Section 130 of the Customs Act, 1962 (for short the Act ) against the order dated 23rd June, 2022 passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Mumbai (CESTAT), whereby the CESTAT has ordered the provisional release of the seized goods in the shape of iPhone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts or things seized [or bank account provisionally attached] under section 110, may, pending the order of the [adjudicating authority], be released to the owner [or the bank account holder] on taking a bond from him in the proper form with such security and conditions as the [adjudicating authority] may require.] 6. An appeal was preferred by the Respondent before the CESTAT, which was allowed by virtue of the order dated 23 rd June, 2022 impugned in the present appeal. The Tribunal held that even when an owner had not been defined in the Customs Act yet, the term owner was deployed in the definition of an importer under Section 2(26) of the Act and by default, ownership could be claimed by an importer. 7. Proceeding on that premise the Tribunal held that it was not open to the customs authorities to hold that there was lack of ownership for the purposes of provisional release under Section 110A of the Act. What was held by the Tribunal is reproduced hereunder: 29. Ownership of the goods, denied by the adjudicating authority and contested by Learned Authorized Representative, is also of relevance here. The goods were seized from consignments claimed by the importer; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue deposit of Rs.5,00,00,000 not later than seven days of service of this order. Entry for export under section 50 of Customs Act, 1962, as and when filed, shall be disposed off expeditiously in accordance with Section 51 of Customs Act, 1962. Appeals are disposed off thus. 8. Learned Counsel for the Appellant urged that the stand of the Respondent always was that he was not the owner of the goods, which were seized, that a similar stand had been taken by him in the Writ Petition filed by him in this Court bearing No. 8751 of 2021, which was eventually withdrawn. It was also urged that in the said writ petition, it was submitted before the Court that the said seized consignment was mistakenly sent to India instead of Dubai by the Supplier based in Hong Kong. It was thus urged that the Respondent having denied ownership of the seized goods could not in law, seek the release of the seized goods provisionally, which could otherwise be released only in favour of the owner. It was vehemently urged that the Respondent was a master mind for smuggling iPhones in India and had created a syndicate for smuggling iPhones and the delivery through imports made by M/s Salecha Electronic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s an owner of the goods seized, which are sought to be confiscated. 11. A reading of Section 110 A makes it abundantly clear that goods seized may be released to the owner. The said section does not include or envisage release of goods provisionally in favour of an importer of goods much less does it envisage, a release in favour of any person , in addition to the owner as mentioned in Section 124 of the Act, who has been served a notice under the said section. In our opinion the Tribunal has in fact committed an error in importing the definition of an importer as defined under Section 2(26) of the Act and reading the same in Section 110A of the Act. Section 2(26) of the Act defines an importer as under : 2(26) importer , in relation to any goods at any time between their importation and the time when they are cleared for home consumption, includes [any owner, beneficial owner] or any person holding himself out to be the importer; Nothing could prevent the legislature from specifically incorporating a provision in Section 110A, which would also entitle, besides an owner, an importer, a beneficial owner or any person holding himself to be an importer to claim a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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