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TMI Blog2023 (8) TMI 755X X X X Extracts X X X X X X X X Extracts X X X X ..... nd style 'Mohini Jewellers'. (ii) The petitioner had sold 675.500 grams of gold bullions to a company in Thrissur, by invoice dated 07.12.2019. The petitioner had entrusted the gold to one of his employees to deliver it to the company. (iii)On 09.12.2019, the Kuzhalmannam Police seized the gold and registered Crime No. 0383/2019. (iv) The second respondent and the petitioner filed Crl.M.P. Nos. 8615 & 8671/2019, respectively, before the Jurisdictional Magistrate, for the release of the gold. (v) The learned Magistrate, by Ext P1 order, rejected the petitioner's application, but allowed the second respondent's application. (vi) Although the petitioner had challenged Ext P1 order before the Court of Session, Palakkad, in Crl. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cisions of the High Courts of Punjab & Haryana and Bombay in Commissioner of Central Excise & Service Tax v. Gaurav Pharma Limited [MANU/PH/1715/2018] and The Commissioner of Customs (Import-I) v. S.S. Offshore Pvt. Ltd. [MANU/MH/3738/2017], respectively, and also the guidelines dated 16.08.2017 framed by the Central Board of Excise & Customs[CBEC] regarding provisional release of the seized imported goods. He argued that Ext P5 order is a laconic and passed in total disregard to the provisions of the Act, the law laid down in the decisions cited by him and the guidelines laid down by the CBEC. Hence, Ext P5 order warrants to be quashed by this Court. 6. Sri. P.G. Jayashankar vehemently resisted the writ petition. He contended that there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icating procedure. It is apposite to extract the Section 122A of the Act, which reads thus: "122A. Adjudication procedure.- (1) The adjudicating authority shall, in any proceeding under this Chapter or any other provision of this Act, give an opportunity of being heard to a party in a proceeding, if the party so desires. (2) The adjudicating authority may, if sufficient cause is shown, at any stage of proceeding referred to in sub-section (1), grant time, from time to time, to the parties or any of them and adjourn the hearing for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during the proceeding." 10. A reading of Section 110A of the Act establishes that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taking a bond from him in the proper form with such security and conditions as the adjudicating authority may require." 2. While provisional release of seized imported goods under Section 110A of the Customs Act, 1962 may normally be considered by the competent adjudicating authority upon a request made by the owner of the seized goods, provisional release shall not be allowed in the following cases- (i) Goods prohibited under the Customs Act, 1962 or any other Act for the time being in force; (ii) Goods that do not fulfill the statutory compliance requirements / obligations in terms of any Act, Rule, Regulation or any other law for the time being in force; (iii) Goods specified in or notified under Section 123 of the Customs Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in S.S. Offshore Pvt. Ltd.(supra) by the Bombay High Court by holding as follows: "15. On application of the above five tests to the present case, the nature of the power conferred under Section 110 read with Section 110A of the Act is to deprive a owner of the goods the use of his property till the final adjudication of the proposed confiscation or allowing the provisional release of the goods subject to certain conditions to safeguard the Interest of the Revenue till the final decision is taken. It is undisputed that the exercise of power which is conferred under Section 110A of the Act would have civil consequences. The power when exercised could lead to either the State being left without security by the time the adjudication order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merit for consideration hence, rejected." 19. The finding of the second respondent in Ext P5 is erroneous, wrong and in blatant violation of the rudimentary principles of natural justice. 20. Sri. P.G. Jayashankar submitted that Ext P5 order has been passed by the second respondent, who is not the adjudicating authority under Section 110A. Hence, Ex P4 application would have directed to be decided by the adjudicating authority constituted under Section 110A of the Act, if this Court is proposing to order the above course. 21. In the light of the analysis and findings rendered above, I am of the view that Ext P4 application is to be directed to be considered by the adjudicating authority, constituted under Section 110A of the Act. Resu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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