2017 (4) TMI 879 - HC - Customs

Sealing of factory premises - seizure of machinery - EPCG Scheme - Held that - there is partial compliance of the statement, which was recorded by this Court on 29th March, 2017. Now the lock placed on the outer door of the room, where the machine was installed, has been removed. Prima facie, this re-enforces this Court s view in arriving at a conclusion that the respondents proceeded to place a lock and seal on the immovable property, namely, the outer door of the factory premises, where the machine was installed. Thus, we do find the act of locking the immovable property instead of movable property, against the provisions of Section 110 of the CA, 1962 and against the Scheme of the Act. We allow this writ petition by directing the respondents that the seized machine shall be released on the petitioners executing a Bond in favour of the respondents and by imposing an additional condition, namely, until the respondents take recourse to law and for a reasonable period, namely, till 31st July, 2017, the petitioners shall not transfer or dispose of the machine, but, it shall be retained by them in safe custody - petition allowed - decided in favor of petitioner.

Summary

Issues Involved:
1. Legality of the sealing of the factory premises.
2. Compliance with export obligations under the EPCG Scheme.
3. Allegations of fraud and collusion with third parties.
4. Justification for the seizure of the printing machine.
5. Conditions for the release of the seized machine.

Issue-wise Detailed Analysis:

1. Legality of the sealing of the factory premises:
The petitioners challenged the sealing of their factory premises under Article 226 of the Constitution, arguing that the Customs Act, 1962, particularly Section 110, does not empower the authorities to seal immovable property. The court noted that the Customs Department had placed a lock on the outer door of the factory premises, which is against the provisions of Section 110 of the Customs Act, 1962. The court found that the act of locking the immovable property instead of movable property was impermissible under the law.

2. Compliance with export obligations under the EPCG Scheme:
The petitioners claimed compliance with the export obligations stipulated under the EPCG Scheme, evidenced by the Redemption Letter dated 7th October 2014, and the subsequent cancellation of the Bank Guarantee and Bond by the Customs Department. The court observed that the petitioners had discharged their export obligations as per the documents from the Customs Department and the Foreign Trade Development Officer. The court questioned the delay in the Customs Department's investigation, which only commenced in 2016, despite the alleged fraud occurring earlier.

3. Allegations of fraud and collusion with third parties:
The respondents alleged that the petitioners, in collusion with M/s. Riddhi Enterprises, committed fraud by showing third-party exports in their Shipping Bills to fulfill export obligations. The court noted that the respondents had not provided sufficient evidence to support the allegations of fraud and collusion. The court emphasized that the allegations of fraud must be substantiated through proper legal procedures and adjudication.

4. Justification for the seizure of the printing machine:
The respondents justified the seizure of the printing machine on the grounds of alleged non-compliance with export obligations and fraud. The court found that the seizure of the machine was not justified at this stage, as the Customs Department had not raised any demand or provided specific allegations against the petitioners. The court held that the seizure must follow proper legal procedures and adjudication.

5. Conditions for the release of the seized machine:
The court directed the respondents to release the seized machine upon the petitioners executing a Bond and imposed an additional condition that the petitioners shall not transfer or dispose of the machine until 31st July 2017. The court clarified that the petitioners must retain the machine in safe custody and abide by the 'Supratnama' and the additional condition imposed. The court also emphasized that the adjudication process must proceed irrespective of the findings in this order.

Conclusion:
The court allowed the writ petition, directing the release of the seized machine upon the petitioners executing a Bond and imposing conditions for its safe custody. The court clarified that the adjudication process must follow proper legal procedures and that the findings in this order should not influence the commencement or conclusion of the procedures related to the seizure.