2011 (5) TMI 375 - HC - Customs

Confiscation - classification and valuation - The petitioner filed seven bills of entry for clearing the said goods in 31 containers on different dates in January 2011 but the custom authorities did not allow clearance on the ground that the material so imported was not scrap but re-rollable metal attracting 5% basic custom duty - On furnishing a declaration in the form of an affidavit that the party will not challenge the value and identity of the seized goods during the course of adjudication or prosecution proceedings, if any whether continued detention of goods can be justified - 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 - Mere fact that there is a power to confiscate does not mean that such power could be exercised mechanically or arbitrarily - The department has not shown prima facie case for exercise of power of confiscation and has only relied upon existence of power - Held that the requirement of bank guarantee equal to 25% of the value of goods is clearly arbitrary and mala fide and the said condition cannot be sustained - Decided in favour of the assessee

Summary

Issues:
Quashing of seizure memo and permitting clearance of goods detained by Customs Authorities under Customs Act, 1962.

Detailed Analysis:
1. The petitioner imported 'Heavy Melting Steel Scrap' from South Africa under Open General Licence Scheme. Customs authorities seized the goods, claiming they were re-rollable metal attracting 5% basic custom duty, not scrap. The petitioner sought clearance after depositing assessed duty but faced continued detention, leading to this petition.

2. The main contention was that proper assessment under Sections 46 and 17 of the Act mandates clearance upon duty payment. The petitioner argued against arbitrary detention under Sections 110 and 111, citing circulars for expeditious assessment to prevent undue hardship. The petitioner challenged the jurisdiction and authorization of the seizing officer.

3. Respondents justified detention due to classification and valuation disputes, claiming misdeclaration for duty evasion. They argued for confiscation under Section 111 and upheld provisional release with stringent conditions to safeguard revenue interests.

4. The court deliberated on the justification for continued detention. The petitioner contended that the seizing officer lacked authorization and challenged arbitrary conditions for release. Previous judgments were cited to support each party's arguments.

5. The court found the requirement of a declaration not to dispute goods' value and furnishing a bank guarantee excessive and arbitrary. It emphasized the need to balance the power of detention with safeguards against abuse, ensuring a fair and reasonable procedure.

6. The judgment highlighted the fundamental right to personal liberty under Article 21 and the doctrine of proportionality. It stressed that any interference with personal liberty must adhere to a just and fair procedure, not arbitrary or oppressive.

7. Ultimately, the court allowed the petition, directing the immediate release of detained goods with conditions excluding the declaration and bank guarantee. The order emphasized that the decision did not prejudice the final adjudication of the dispute in subsequent legal proceedings.