9911796707
TMI Blog2023 (12) TMI 597X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Customs Act, 1962 (hereafter 'the Customs Act'). The petitioner also impugns an order dated 02.12.2023 (hereafter 'the impugned order') passed by respondent no. 6 directing provisional release of the goods imported by the petitioner albeit on furnishing a bond equivalent to the value of seized goods of Rs.3,70,24,887/- and a bank guarantee/security deposit equivalent to 120% of the said amount, amounting to Rs.4,44,29,864/-. 2. According to the petitioner, paragraph 2 of the impugned Circular runs contrary to the provisions of Section 110A of the Customs Act, which confers the discretion on the adjudicating authority to impose such conditions and demand such security as the adjudicating authority may require. 3. It is contended t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as it may require. Section 110A of the Customs Act, 1962 (hereafter 'the Act') reads as under: "110A. Provisional release of goods, documents and things seized or bank account provisionally attached pending adjudication.-Any goods, documents 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." 3. It is apparent from a plain reading of Section 110A of the Act that the Adjudicating authority has been granted the discretion to provisionally release the goods, on a bond in the proper form wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Bond mentioned at Para 2.1 above, the competent authority shall take a Bank Guarantee or Security Deposit to cover the following : i. the entire amount of duty/differential duty leviable on the seized goods being provisionally released; ii. amount of fine that may be levied in lieu of confiscation under Section 125 of the Customs Act, 1962 at the time of adjudication of the case. While securing the same, the competent authority shall take into account the nature of the seized goods, the duty and charges payable on the said goods, their market price and the estimated margin of profit; iii. amount of penalties that may be levied under the Customs Act, 1962, as applicable, at the time of adjudication of the case. 2.3 Depending on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Be it noted, here, that we refer to the "eligibility" of the goods for provisional release, as distinct from the "entitlement" thereof, which has to be determined by the adjudicating authority in exercise of the discretion conferred on her, or him, by Section 110A.) Para 2 of Circular 35/2017-Cus, therefore, effectively seeks to supplant Section 110A, to that extent, and has, therefore, to be regarded as void and unenforceable at law." 7. This Court is informed that the SLP preferred against the said decision has been rejected. 8. Prima facie, the petitioner's prayer that the impugned circular is required to be declared as ultra vires the provisions of the Act is liable to be allowed. 9. The petitioner also impugns an order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircular is covered by the decision of Additional Director General (Adjudication) v. M/s Its My Name Pvt. Ltd. (supra). He submits that the impugned order be set aside and the matter be remanded to respondent no. 6 to decide afresh. 6. In view of the above, the present petition is allowed. 7. Paragraph 2 of the impugned Circular to the extent it curtails the discretion accorded to the adjudicating authority is set aside as being contrary to the Customs Act. 8. The impugned order is set aside and the petitioner's application for the provisional release of the goods is restored before respondent no. 6. 9. Considering that the goods involved are perishable, respondent no. 6 is directed to decide the matter afresh and pass a speaking order w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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