2011 (8) TMI 947 - HC - Customs

Petitioner inter alia seeks unconditional release or the provisional release of 7 cranes seized by the Respondent and challenges the action of the Respondent - From the material on record, it has also emerged before the Court that the Petitioner has deposited an amount of Rs. 80,00,000/- with the Respondents when he was called for investigation by the Directorate of Revenue Intelligence - According to the Revenue, the documents show that the cranes were imported at highly under valued prices ranging from Rs. 40/- to Rs. 45/- per kg of the weight of the cranes as opposed to the actual transaction value - On the material which has emerged during the course of investigation and which has been adverted to in the affidavit in reply, the Petitioner cannot be allowed to seek unconditional release of the seized goods - Held that the ends of justice would be met, if a direction is issued to the effect that the Petitioner shall furnish a bank guarantee of Rs. 40,00,000/- of a Nationalised Bank, and a P.D. bond to the satisfaction of the adjudicating authority, as a condition precedent for the provisional release of the goods. Upon furnishing of a bank guarantee and bond as directed hereinabove, the Respondent shall provisionally release the balance 7 cranes - Petition is allowed

Summary

Issues:
1. Unconditional or provisional release of seized cranes.
2. Allegations of gross undervaluation and fraud in crane import.
3. Amount deposited by the Petitioner under duress.
4. Dispute over conditions imposed for provisional release.
5. Interpretation of Section 110A of the Customs Act, 1962.

Issue 1: Unconditional or Provisional Release of Seized Cranes:
The Petitioner sought unconditional or provisional release of 7 cranes seized by the Respondent. The dispute arose from the seizure of 9 cranes due to alleged undervaluation of import prices. The Petitioner had already cleared 2 cranes but contested the release of the remaining 7 cranes.

Issue 2: Allegations of Gross Undervaluation and Fraud in Crane Import:
The Revenue alleged serious undervaluation in the import prices of cranes by the Petitioner, citing discrepancies in declared values and actual transaction values. Investigations revealed potential under-valuation ranging from 50%-80% of the actual value. The Revenue also accused the Petitioner of using a dummy Import Export Code and engaging in fraudulent practices.

Issue 3: Amount Deposited by the Petitioner Under Duress:
The Petitioner deposited Rs. 80,00,000 with the Respondents during the investigation. The Petitioner claimed the deposits were made under duress, disputing the voluntary nature of the payments.

Issue 4: Dispute Over Conditions Imposed for Provisional Release:
The Petitioner contested the conditions imposed for the provisional release of the cranes as arbitrary and harsh. The Petitioner argued against the requirement of a bank guarantee and objected to the directive to produce the cranes for inspection, citing the intention to sell them in the normal course of business.

Issue 5: Interpretation of Section 110A of the Customs Act, 1962:
The judgment referred to Section 110A, which allows for the provisional release of seized goods pending adjudication, subject to conditions imposed by the adjudicating authority to secure the interests of the Revenue. The Court emphasized the authority's discretion in demanding security and setting conditions for release, as highlighted in a prior judgment.

In conclusion, the Court ruled in favor of the Revenue, directing the Petitioner to furnish a bank guarantee of Rs. 40,00,000 and a P.D. bond for the provisional release of the remaining 7 cranes. The bank guarantee was deemed necessary to secure duty, redemption fine, and potential penalties during the adjudication proceedings. The judgment highlighted the importance of safeguarding the Revenue's interests while allowing for the provisional release of seized goods under Section 110A of the Customs Act, 1962.