TMI Blog2023 (8) TMI 755X X X X Extracts X X X X X X X X Extracts X X X X ..... d down by the CBEC, leads me to irresistible conclusion that the Act of adjudicating authority in deciding an application for provisional release is adjudicating procedure and not a ministerial act as contended by the respondents. Therefore, the adjudicating authority is bound to adhere to the elementary principles of natural justice by adverting to the contentions raised in an application seeking provisional release and afford the applicant an opportunity of being heard. The finding of the second respondent in Ext P5 is erroneous, wrong and in blatant violation of the rudimentary principles of natural justice. Ext P4 application is to be directed to be considered by the adjudicating authority, constituted under Section 110A of the Act - adjudicating authority constituted under Section 110A of the Act, is directed to consider and dispose of Ext P4 application, in accordance with law and as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment, after affording the petitioner an opportunity of being heard - petition disposed off. - HONOURABLE MR. JUSTICE C.S. DIAS For The Petitioner: By Advs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pearing for the petitioner and Sri.P.G.Jayashankar, the learned Standing Counsel appearing for the respondents. 5. Sri. Hrithwik D. Namboothiri drew the attention of this Court to Ext P4 application, wherein the petitioner has specifically sought for an opportunity of being heard. He placed reliance on the decisions 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 is no necessity for conducting an adjudication in an application filed under Section 110A of the Act. He placed reliance on the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditions as the adjudicating authority may require. 11. Thus, the above provision read with Section 122A of the Act clearly establishes that during the pendency of the adjudicating procedure, the adjudicating authority has the power to provisionally release the things enumerated under Section 110A of the Act, on taking a bond and/or security. 12. It is to be born-in-mind that, Section 110A was inserted by Act, 2006 with effect from 13.07.2006. Likewise, the word Adjudicating Officer and Commissioner of Customs was substituted with the words Adjudicating Authority by Act No.8 of, 2011, with effect from 08.04.2011. 13. Consequent to the above amendments to the Act, the CBEC has issued guidelines dated 16.08.2017, the relevant portion which reads thus: The following guidelines are being issued for guidance of the adjudicating authorities in order to ensure uniformity and to streamline the divergent procedures being followed for grant of provisional release of imported goods which are seized under Section 110 of the Customs Act, 1962. Section 110A of the Customs Act, 1962 states that Any goods, documents or things seized under section 110, may, pending the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 is passed or the conditions for provisional release could be so onerous that it would be impossible for the importer to comply with them and use the goods till adjudication is over. The person vested with| the power to allow provisional release of the seized goods is the adjudicating authority under the Act. The Act itself deals with import of goods into the country. All of the above, would suggest that the order/decision given for provisional release would be in the nature of quasi-judicial decision/ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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