2018 (8) TMI 257 - AT - Customs

Provisional release of the seized goods - Section 110A of the Customs Act, 1962 - Jurisdiction - action of the Commissioner granting the provisional release, whether valid or not? - Held that - From the perusal of the provision of Section 110A and Circular No. 35/2017, it is quite evident that in case of provisional release of the seized goods is to be decided by the adjudicating authority who is competent to decide the case as per show cause notice - In this case, it is on record that Show Cause Notice has been issued by the Joint Commissioner of Customs who is also the adjudicating authority in the case. In the circumstances, it is not understood as to how and why the provisional release was granted by the Commissioner who as per Show Cause Notice is not the competent adjudicating authority in this case - the action of the Commissioner granting the provisional release itself is not sustainable and liable to be set aside. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Provisional release of seized goods under Section 110A of the Customs Act, 1962.

Analysis:
The appellant challenged a provisional order issued by the Commissioner regarding the release of seized goods, deeming the conditions imposed as harsh and difficult to comply with. The case involved the import of a consignment of HOP extract, which was seized by customs due to discrepancies in declared price. The importer had filed the Bill of Entry on a first check basis, but the consignment remained uncleared, leading to a writ petition. Subsequently, a show cause notice was issued under Section 124 of the Customs Act. The provisional release was granted during adjudication, prompting the appeal.

The appellant argued against the conditions set for release, citing various case laws related to provisional release of seized goods under Section 110A of the Customs Act. The appellant relied on specific case law excerpts to support their argument, emphasizing the need for clear guidelines in such cases. On the other hand, the respondent defended the conditions based on Circular No. 35/2017-Cus, outlining the requirements for provisional release, including bonds and security deposits.

The Tribunal analyzed the provisions of Section 110A and Circular No. 35/2017, concluding that the provisional release decision should be made by the adjudicating authority as per the show cause notice. In this case, the Commissioner, not the competent adjudicating authority, had granted provisional release, leading to the decision being deemed unsustainable. The Tribunal set aside the impugned order, directing the adjudicating authority to release the goods within 10 days in accordance with specific guidelines.

In the final judgment, the Tribunal allowed the appeal, emphasizing the need for compliance with established guidelines for provisional release of seized goods. The decision highlighted the importance of proper authority in granting provisional release and directed the release of goods within a specified timeframe, ensuring adherence to relevant circulars and regulations.