2013 (9) TMI 784 - HC - Customs

Provisional Release of Goods - Assessees were engaged in importing and trading of goods - In their day-to-day conduct of business, they import certain articles which were used as raw material for finished goods in which they trade or such articles were traded as such by them -Held that - Goods were seized on 2.5.2013. Order of provisional release was communicated to the petitioner on 3.5.2013 - Because of the onerous conditions imposed by the authorities, relief of provisional release could not be availed by the petitioner - Exercise of powers in such autocratic and despotic manner by the authorities was deprecated - While accepting the writ petition partly, the order of provisional release was set aside retaining it to the extent of furnishing of bond equivalent to the value of the seized goods and deposit of differential duty - Availing of facility of provisional release, by no means, would be taken as acquiescence on the part of the petitioner to the order of seizure of goods which the petitioner would be within its right to challenge in appropriate proceedings. In a case where bank guarantee of 25% of value of goods under challenge was demanded, such condition was held to be not proper, particularly when the seized goods were cleared by the Customs and duty as demanded was paid - Reference may be made to Nav Shakti Industries Pvt. Ltd. v. Commissioner of Customs, ICD, New Delhi 2011 (4) TMI 530 - SUPREME COURT OF INDIA - Modifying the order of High Court of Delhi, Hon ble Supreme Court of India had issued direction for clearance of the goods by the customs authorities on furnishing of a bank guarantee of 30% of the differential duty. In Zest Aviliation Pvt. Ltd. v. Union of India 2013 (6) TMI 9 - DELHI HIGH COURT bank guarantee of 30% of differential duty with undertaking of self-renewal till final disposal of the case was held to be reasonable and condition of bank guarantee was termed as harsh and burdensome. Claim of the custom authorities was that the petitioner had indulged in ingenuine transactions, and thus, should not be allowed any relief particularly when statutory remedy was available to it and making short-circuiting, the petitioner had invoked the forum of judicial review under the writ jurisdiction - No doubt, the Court does not act as a court of appeal against the decision of customs authorities but when no remedy was available to the petitioner against an order imposing highly onerous conditions passed by the authorities and circumstances were peculiar, this Court will not hesitate to interfere by entertaining a petition under Article 226 of the Constitution of India to come to the rescue of the petitioner who has been left remediless under the statute. When duty levied by the authorities at the time of initial clearance of the goods has been paid, then furnishing of bank guarantee/cash deposit/fix deposit, even to the extent of 25% of the full value of seized goods is certainly highly onerous condition which makes the relief of provisional release to be nugatory for them.

Issues involved:
Import and trading of goods, seizure of goods, provisional release conditions, legality of actions, judicial review of conditions imposed, statutory remedy availability, onerous conditions, financial burden on petitioner, autocratic exercise of powers.

Import and trading of goods:
The petitioners, engaged in importing and trading goods, faced seizure of goods for alleged misdeclaration. The petitioners imported heavy milling scrap and re-rollable scrap, which were seized by the authorities due to alleged misdeclaration in description and weight to evade custom duty.

Seizure of goods:
The respondents alleged misdeclaration by the petitioners regarding the goods' description and weight at the time of filing Import General Manifests (IGMs). The petitioners requested provisional release of the seized goods, which was granted by the authorities with certain conditions deemed onerous by the petitioners.

Provisional release conditions:
The authorities imposed conditions for provisional release, including furnishing a bond for the full value of seized goods, providing a bank guarantee/cash deposit, and payment of differential duty. The petitioners contested the onerous nature of these conditions and approached the court for relief.

Legality of actions:
The petitioners challenged the legality of the seizure of goods and the conditions imposed for provisional release. The respondents defended their actions, asserting the validity of the seizure and the necessity of the conditions imposed for provisional release.

Judicial review of conditions imposed:
The court examined the provisions of the Customs Act, particularly Section 110-A, which allows for provisional release of seized goods pending adjudication. The court evaluated whether the conditions imposed on the petitioners were reasonable or unduly burdensome, considering the objective of securing revenue interests.

Statutory remedy availability:
The court considered the availability of statutory remedies for the petitioners against the conditions imposed. The respondents failed to provide a convincing argument regarding the reasonableness of the conditions, leading the court to intervene under Article 226 of the Constitution to address the petitioner's lack of remedy.

Onerous conditions and financial burden on petitioner:
The court analyzed the conditions imposed on the petitioners for provisional release, focusing on the requirement of a bank guarantee/cash deposit equal to 25% of the seized goods' value. The court deemed this condition excessively burdensome and not justified when duty had already been paid.

Autocratic exercise of powers:
The court criticized the authorities for their autocratic and despotic exercise of powers in imposing onerous conditions for provisional release. The court set aside the conditions to the extent of requiring a bond equivalent to the seized goods' value and payment of differential duty, allowing the petitioners relief.

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