2014 (11) TMI 358 - HC - Customs

Detension of goods - import of Defective MS CR Sheet Cuttings - petitioner did not submit the copy of the Asian India Free Trade Agreement (AIFTA) Certificate of Origin -benefit of Notification No.46 of 2011-Customs - Misdeclaration of goods - Ineligible certificate for availing benefit of Notification - whether the goods in question have to be retained by the respondents or as to whether the respondents should be directed to provisionally release the goods pending further action by them - Held that - Sofar as subject import, in the counter affidavit, the respondents have stated that the duty foregone is ₹ 2,08,358/-. This appears to have been calculated on the ground that the petitioner is not entitled for the benefit of Notification No.46 of 2011-Customs. Therefore, while preserving the right of the department to proceed with the investigation not only with subject consignment, but as well as the prior imports, this Court is of the view that the petitioner should be permitted to remove the goods by way of provisionally release pending investigation/issuance of show cause notice and adjudication subject to stringent conditions. This Court is inclined to exercise such discretion in the light of the fact that the duty, which is alleged to have been foregone on the subject import is ₹ 2,08,358/-, as per the counter affidavit and the goods in question are not prohibited items nor any licence is required for import of the said items. Petition is disposed of, by directing the respondents to provisionally release the goods covered Bill of Entry No.6022232, dated 05.07.2014, under Section 110-A of the Customs Act, subject to the condition that the petitioner deposits a sum of ₹ 2,08,358/- and also furnishes a bond to the satisfaction of the respondents as regards any fine or penalty that may be imposed as in the dissuasion of the respondent. On the petitioner making the above remittance and executing the bond to the satisfaction of the respondents, the goods shall be forthwith released. - Decided partly in favour of assessee.

Summary

Issues:
- Mis-declaration of goods in Bill of Entry
- Alleged misuse of Notification No.46 of 2011-Customs
- Request for provisional release of goods under Section 110-A of the Customs Act

Mis-declaration of goods in Bill of Entry:
The petitioner filed a Bill of Entry for clearance of goods declared as Defective MS CR Sheet Cuttings under Notification No.46 of 2011-Customs, which allows for NIL basic customs duty. However, discrepancies arose during the investigation as the description of goods in the Bill of Lading differed from the declaration in the Bill of Entry. Testing revealed the consignment to be Electro Galvanized Low Carbon CR Steel Sheets, contrary to the petitioner's declaration. The petitioner argued that the goods were not prohibited, and no license was required for import. The court noted the potential mis-declaration but emphasized that the issue of entitlement to customs duty benefits could be addressed during adjudication proceedings. The court highlighted the provision under Section 110-A for provisional release of goods pending adjudication, which the respondents had not utilized despite a request from the petitioner.

Alleged misuse of Notification No.46 of 2011-Customs:
The respondents contended that the petitioner had misused Notification No.46 of 2011-Customs for multiple consignments, resulting in a duty foregone amounting to &8377;81,75,371. They highlighted the petitioner's failure to submit required AIFTA certificates of origin and the mis-declaration of goods. The respondents argued that releasing the goods would impede the ongoing investigation and revenue collection duties of the Customs Department. The court acknowledged the duty foregone on the subject consignment but balanced it against the lack of prohibition on the imported goods. It directed the provisional release of the goods, subject to stringent conditions, to allow the petitioner to remove them pending further investigation and adjudication.

Request for provisional release of goods under Section 110-A of the Customs Act:
The court, considering the interests of both the petitioner and the revenue, ordered the respondents to provisionally release the goods covered in the Bill of Entry under Section 110-A of the Customs Act. The release was subject to the petitioner depositing the alleged duty foregone amount and furnishing a bond for any potential fines or penalties. The court emphasized the petitioner's cooperation in the investigation/adjudication process and allowed the department to proceed with legal actions as necessary. It clarified that the release of the goods would not obstruct the ongoing investigation into both the subject consignment and previous imports.

In conclusion, the judgment addressed the mis-declaration of goods, alleged misuse of customs duty benefits, and the request for provisional release under Section 110-A of the Customs Act. The court balanced the interests of the petitioner and the revenue, ultimately permitting the provisional release of the goods subject to specific conditions to ensure compliance with the law and ongoing investigations.