2008 (2) TMI 293 - HC - Customs

Petitioners approached this Court to seek clearance of the goods imported unconditionally without any deposit or bank guarantee on ground that no any SCN under Section 124(a) was served on the petitioner within 6 months of seizure held that period of six months is applicable only when confiscation is proposed not when goods are provisionally released assessee is directed to furnish bank guarantee

Summary

Issues Involved:
1. Clearance of imported goods without deposit or bank guarantee.
2. Legality of detention and seizure of goods.
3. Application of Section 110(2) of the Customs Act regarding release of goods after six months.
4. Provisional release of goods under Section 110A of the Customs Act.
5. Variation of terms for provisional release.

Detailed Analysis:

1. Clearance of Imported Goods Without Deposit or Bank Guarantee:
The petitioners sought the unconditional clearance of imported goods without any deposit or bank guarantee, and payment of container detention and demurrage charges. Alternatively, they sought to set aside the order of detention dated 30th March 2007 and to prevent its implementation.

2. Legality of Detention and Seizure of Goods:
The consignment of cosmetics was imported, and the Bill of Entry was filed on 14th February 2007. Upon examination by the Central Intelligence Unit, discrepancies and excess quantities were found, leading to the detention of goods on 27th February 2007. A seizure memo was issued on 30th March 2007, formally seizing the goods. The petitioner sought provisional release of the goods, which was offered by the respondents on payment of Rs.15 lakhs duty and a Rs.35 lakhs bank guarantee.

3. Application of Section 110(2) of the Customs Act:
The petitioner argued that under Section 110(2) of the Customs Act, if no show cause notice is served within six months of the seizure, the goods must be returned. The respondents countered that the goods were provisionally released as per the petitioner's request, and thus, the goods were no longer under seizure. Consequently, the contention that the goods should be released under Section 110(2) was rejected.

4. Provisional Release of Goods Under Section 110A of the Customs Act:
The court examined whether the failure to issue a notice under Section 124(a) within six months of seizure grants a vested right under Section 110(2) to release the goods without security. Section 110A allows provisional release of seized goods pending adjudication. The petitioner had applied for provisional release, and an order was passed within six months, thus Section 110(2) was not applicable. The court noted that the provisional release order is a quasi-judicial order, and the goods continue to be under seizure until the adjudication is complete.

5. Variation of Terms for Provisional Release:
The petitioner requested a variation of the provisional release terms, offering a bank guarantee for the total amount instead of a combination of duty payment and bank guarantee. The court agreed to vary the order to allow the petitioner to furnish a bank guarantee of Rs.50 lakhs instead of the original terms.

Conclusion:
The court ruled that the provisional release order made within six months of seizure negates the applicability of Section 110(2). The petitioner's request for unconditional release was rejected. However, the court varied the provisional release terms, allowing the petitioner to furnish a bank guarantee of Rs.50 lakhs. The rule was made partly absolute, with no order as to costs.