TMI Blog2022 (11) TMI 650X X X X Extracts X X X X X X X X Extracts X X X X ..... f M/s. K L International and the department also issued summons to her, a criminal case was also filed in the court of law against her. Therefore, at this stage, the issue of identity cannot be said to be in dispute. Section 110A of the Customs Act, 1962 provides for provisional release of goods, documents and things seized pending adjudication. Any goods, documents or things seized under Section 110 of the Act, may, pending the order of the adjudicating officer, be released to the owner on taking a bond from him in the proper form with such security and conditions as the Commissioner of Customs may require - Discretion is cast upon the adjudicating authority for determining the value of the bond to be taken and the security deposit as also the conditions to be imposed while passing an order for provisional release of the goods. The exercise of this discretion has to be fair and reasonable and should not be exercised on irrelevant considerations. The goods namely dry dates being edible is obviously in the perishable nature. It has been considered consistently by various forums that in case of perishable goods provisional release of the goods should be allowed expeditiously. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1962. Subsequently, the Appellant made submissions before the Additional Commissioner, Customs (SIIB), Jamnagar and Deputy Commissioner of Customs (Imports), Pipavav Port that the detained goods are edible items approved by CRCL/FSSAI, are perishable in nature and therefore cannot be detained indefinitely and prayed for the goods to be released provisionally at the earliest. 2.2 Pursuant to the above, the Appellant received a letter dated 22.03.2022 from the Deputy Commissioner of Customs House, Pipavav ( impugned order ) wherein it is stated that the Principal Commissioner, Customs (P), Jamnagar has acceded request for provisional release of the goods upon execution of Bond covering the full value of seized goods and Bank Guarantee or cash deposit of an amount of Rs. 12 crores covering the differential duty, fine, penalty. Being aggrieved by the order communicated vide letter dated22.03.2022, the present appeal has been filed seeking to set aside of the order to the extent it requires to the Appellant to deposit of Rs. 12 Crores of cash or Bank Guarantee. 3. Shri Rahul D. Patel, Learned Counsel, appearing on behalf of Appellant submit that as regard identity and ownershi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed a written submission on 21 October, 2022, all these submissions have been taken on record and considered. 5. We have carefully considered the submission made by both the sides and perused the records. We find that the issue in dispute is of country of origin that whether the goods imported by importer is of Pakistan origin or UAE origin. The department is of the contention that the packing bags bear the name of some Pakistani Company. Therefore, the goods are of Pakistan origin. In this regard, we find that as per the facts all the bags do not bear the name of Pakistani Company. It is also found that the bags do not bear name of any dates manufacturer Company or dates supplier of Pakistan. All the documents submitted by the appellant show that the goods are of UAE origin. However, the investigations are under process, therefore on the basis of investigation and outcome of the adjudication, it can be finally ascertained that whether the goods imported by the appellant is of Pakistan origin or UAE origin. Therefore, at present considering the stage of investigation only a prima facie view can be drawn. As regard the dispute raised by Learned (Authorized Representative) about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the adjudicating authority. Section110A provides a pragmatic mechanism to facilitate provisional release of seized goods to the owner pending adjudication but at the same time protecting the interest of the revenue. Keeping the above in mind, the provision is required to be understood and applied. We also noticed that that there are no prescribed guidelines for the amount of security that ought to be insisted upon while making a provisional release under Section110A of the said Act. However, a reasonable condition may be imposed. Discretion is, therefore, cast upon the adjudicating authority for determining the value of the bond to be taken and the security deposit as also the conditions to be imposed while passing an order for provisional release of the goods. The exercise of this discretion has to be fair and reasonable and should not be exercised on irrelevant considerations. 5.2 The condition submitting the Bank Guarantee or cash deposit of an amount of Rs. 12 crores itself require to be tested in terms of law delivered on the issue in the case of Spirotech Heat Exchangers Pvt. Ltd. v. Union of India reported in 2016 (341) E.L.T. 110 (Del.) wherein the Hon ble High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nless the affected party agrees to withdraw the challenge to the valuation. This will amount to denial of justice. Similarly, requirement of furnishing bank guarantee equal to 25% of the full market value of the seized goods is also, in the facts and circumstances of the case, arbitrary. Mere fact that condition of 10% of bank guarantee was upheld by this Court in T.L.Verma and M/s. Kundan Rice Mills cannot be justification to impose such conditions in each and every case. In those cases, this Court was satisfied that the importers had adopted fraudulent tactics which, prima facie, justified opinion for confiscation of goods. The said judgments cannot apply to every case of detention. Mere allegation of liability to confiscation is not enough. Circumstances and grounds justifying opinion about liability to confiscation is open to judicial scrutiny. 5.3 On due considering of the aforesaid judgments, we turn to the question of Bankguarantee/Security which is required to be given in addition to bond for provisional release in the present case. To decide the amount of Bankguarantee, we are guided by the fact that the impugned imported consignments have been accompanied by the neces ..... X X X X Extracts X X X X X X X X Extracts X X X X
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