2013 (6) TMI 636 - HC - Customs

Re-import of carpets - provisional release - perishable goods - It is submitted that the petitioner had initially exported the carpets put on account of recession has re-imported them and the respondent-authorities have stored and placed the carpets in the godown in Mandideep. - held that - the authorities have not properly applied their mind to the amount required to be deposited by the petitioner as there is no order of assessment, penalty or provisional assessment quantifying their liability and admittedly no proceedings for confiscation have been initiated under Section 110 or 110A of the Customs Act against the petitioner. The amount of duty required to be paid by them is much less than the amount for which they have been asked to furnish bank guarantee for release of the goods, therefore, in the circumstances we are of the considered opinion that the authorities should reconsider the matter and pass orders after duly hearing the petitioner and therefore, we are of the considered opinion that the impugned orders dated 12-10-2011 and 16-12-2011 deserve to be and are hereby quashed.

Summary

Issues:
1. Validity of the orders passed by the Dy. Commissioner (Customs) and Assistant Commissioner of Customs.
2. Requirement of bond, bank guarantee, and deposit amount for provisional release of goods.
3. Applicability of Sections 110 and 110A of the Customs Act.
4. Compliance with the procedure under Section 18 of the Customs Act for provisional assessment.
5. Authority's power to demand differential duty, penalty, and provisional duty before assessment.
6. Judicial review of the impugned orders.

Analysis:
The petitioner, a company dealing with carpets, challenged orders by the Dy. Commissioner (Customs) and Assistant Commissioner of Customs, directing them to furnish a substantial amount for provisional release of goods. The petitioner had re-imported carpets due to recession, seeking release as the goods were perishable. The authorities demanded a bond and bank guarantee, including differential duty, penalty, and provisional duty. The petitioner argued that no confiscation proceedings were initiated under Sections 110 or 110A of the Customs Act, questioning the demand's legality.

The Court noted that no assessment or confiscation proceedings had been initiated against the petitioner. The authorities were criticized for not quantifying the liability before demanding the deposit. The Court found no legal basis for demanding differential duty, penalty, and provisional duty without proper assessment. The authorities were expected to review relevant documents and decide on the release application lawfully.

The Court emphasized that the demanded amount exceeded the actual duty liability, urging a reconsideration. Consequently, the impugned orders were quashed, and the petitioner was directed to appear before the Dy. Commissioner for a lawful decision within a month. The Court allowed the petition without costs, emphasizing compliance with legal procedures.

In conclusion, the judgment focused on the authorities' failure to assess the petitioner's liability properly before demanding a substantial deposit for provisional release. The Court highlighted the need for lawful procedures, including proper assessment and hearing the petitioner, leading to the quashing of the impugned orders and a direction for a reconsideration following legal guidelines.