2016 (6) TMI 627 - HC - Customs

Seeking release of gold bars - whether the seized gold is a smuggled goods or not - show cause notice was issued - Though the respondent seemed to have produced an authorisation letter, dated 13.10.2013, to carry gold from Kolkatta to Chennai, it is the contention of the department that the said authorisation letter is a fabricated document to bring smuggled gold bars to Chennai. - Held that - if the subject gold is ultimately sold by the dealer, it would not be possible for verification or production before the competent authority, in the adjudication proceedings and to protect the interests of the revenue, the appellants are directed to release 15.160 kg of Gold Bars to the respondent, which was seized vide Mahazar dated 14th October 2013, subject to the conditions.

Summary

Issues Involved:
1. Provisional release of seized gold.
2. Legality of the gold import.
3. Conditions for provisional release.
4. Compliance with statutory provisions.
5. Safeguards for the interests of the revenue.

Issue-wise Detailed Analysis:

1. Provisional release of seized gold:
The appeals were filed against an interim direction to provisionally release 15.160 Kgs of gold bars seized from the respondent. The Writ Court had directed the provisional release of the gold pending the disposal of the writ petition, subject to certain conditions, including the payment of 100% duty and execution of a personal bond.

2. Legality of the gold import:
The respondent claimed to be a legitimate dealer in gold and silver bullion, asserting that all transactions were documented and disclosed to authorities. Conversely, the appellants argued that the gold was smuggled from Bangladesh and lacked legal import documentation, making it liable for confiscation under Section 111 of the Customs Act, 1962.

3. Conditions for provisional release:
The Writ Court imposed conditions for the provisional release, including photographing/videographing the gold to capture any foreign markings, payment of 100% duty, and execution of a personal bond. The appellants contended that these conditions were insufficient to safeguard the revenue's interests and prevent the erasure of foreign markings on the gold.

4. Compliance with statutory provisions:
Section 110A of the Customs Act allows for the provisional release of seized goods pending adjudication. The Writ Court's order was challenged on the grounds that it did not adequately consider the statutory provisions and the potential for the gold to be smuggled and thus liable for confiscation under Section 111.

5. Safeguards for the interests of the revenue:
The appellants emphasized the need for stringent conditions to protect the revenue's interests. The court acknowledged this concern and directed additional conditions, including the provision of a bank guarantee for 50% of the gold's value and immovable property security for the remaining value. The respondent later agreed to offer a bank guarantee for the entire value of the seized gold, which the court accepted, modifying the original conditions.

Final Judgment:
The court directed the provisional release of the gold upon the respondent fulfilling the modified conditions, including offering a bank guarantee for 100% of the gold's value. The appeals were disposed of with no costs, and connected miscellaneous petitions were closed.