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TMI Blog2023 (9) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... was initiated by the Respondents in regard to the import of such goods. Statements of certain persons were recorded and the goods in question were seized. On 22nd April 2022, a show cause notice was issued to the Petitioner inter alia alleging that the Petitioner has undervalued the imported goods, subject matter of the above-referred bill of entry as also in respect of past 13 bills of entry. It was opined that the declared value of the goods was liable to be rejected in terms of Explanation 2(iii)(a) to Rule 12 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007. 3. In the above circumstances, the Petitioner addressed letters on 17th December 2021, 13th May 2022, 6th June 2022, and thereafter, five more letters dated 14th June 2022, 17th August 2022, 9th February 2023, 22nd February 2023 and 21st July 2023 to the concerned officer requesting that the Petitioner be granted provisional release of the goods. Also, the Petitioner filed an interim reply to the show cause notice. We may observe that despite the Petitioner repeatedly knocking the doors of Respondent No. 2 (Commissioner of Customs) by such several letters, not a single letter was replied by R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or provisional release of the goods. 3. In our prima facie opinion, the reliefs has prayed for in the petition would be required to be granted, if the case of the Petitioner is correct. 4. Before we proceed to pass any order, we accept the request of Mr. Adik, learned counsel for the Respondents for adjournment of one day to enable him to take instructions. We are hopeful that the Customs Authorities will take an appropriate view of the matter considering the clear position in law. 5. At the request of Mr. Adik, stand over to 30th August, 2023 to be listed on the supplementary board." 5. It is on the above backdrop, Mr. Shah, learned Counsel for the Petitioner, has taken us through the memo of the petition as also the correspondence as annexed to the petition. His submission is that this is clearly a case where Respondent No. 2 has abdicated his statutory duty and, more particularly, by not responding to eight letters/applications addressed by the Petitioner to Respondent No. 2 right from 17th December 2021 to 21st July 2023. It is his submission that even an interim reply to the show cause notice was filed. Mr. Shah points out that neither the show cause notice is being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , may be called upon to be furnished, shall contain an undertaking that the importer shall pay the duty, fine and/or penalty as may be adjudged by the Adjudicating Authority, subject to the appellate provisions under the Act. Mr. Adik's contention referring to the circular is that a discretion is available with the competent authority to call upon the importer to furnish bank guarantee or security deposit to cover the interim amount of leviable duty on seized goods, which are sought to be provisionally released. Mr. Adik submits that, in the present case, the Petitioner, therefore, be directed to furnish bank guarantee or security deposit as also other conditions as set out in para 2.2 of the said circular. 8. Having heard learned Counsel for the parties and having perused the record, as also the circular dated 16th August 2017, as referred by Mr. Adik, at the outset, we may observe, that no doubt the circular contains guidelines for provisional release of the seized imported goods pending adjudication under Section 110A of the Customs Act, the same is issued to the Principal Chief Commissioners. Thus, the circular would be required to be taken into consideration by the concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principles of fairness, non-arbitrariness and non-discrimination. Respondent No. 2 hence could not have taken a position, that he would not even respond to such representations/applications of the petitioner. This was certainly not, what would be expected from a public official. 10. It is clear that in the present case, Respondent No. 2 has not only failed to take cognizance of the repeated applications of the Petitioner, when powers were conferred on him to exercise discretion either to release the goods provisionally or impose conditions and grant provisional release or reject the provisional release of the goods. However, he appears to have acted in complete disregard of his powers and duties. In our opinion, such approach of Respondent No. 2 is certainly not conducive either to the position he wields under the legislation or the public trust he would repose in discharging his statutory duties. This could not have been the approach of Respondent No. 2 even acting under the Circular, as pointed out by Mr. Adik, in requiring Respondent No. 2 to consider any application for release of goods provisionally. 11. It is in the light of the above discussion, we are required to consider ..... X X X X Extracts X X X X X X X X Extracts X X X X
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