2020 (9) TMI 269 - HC - Customs

Jurisdiction - power of CESTAT to prescribe the amount fixed for filing appeal under 129E of the Customs Act, 1962 as the quantum of Bank Guarantee under Section 110A ibid for release of seized goods - amendment in quantum of the Bank Guarantee ordered to be furnished by the Competent Authority under Section 110A ibid read with CBEC Circular 35/2017-Cus. dated 16.08.2017 - Jurisdiction of Tribunal o entertain an appeal against a letter allowing provisional release under Section 110A of the Customs Act, 1962. HELD THAT - It is an undisputed fact that, prior to the notification No.84/2017-Customs dated 08.11.2017, the import of yellow peas was not liable for payment of duty. According to the learned Counsel appearing for the respondent/importer, the notification No.84/2017-Customs dated 08.11.2017, came to be published at 22.15 Hrs., whereas, the formalities regarding assessment of Bills of Entry have completed much earlier at 12.50 Hrs., on 08.11.2017. The Tribunal in the peculiar facts and circumstances of the case, especially, with regard to the time of the notification No. 84/2017-Customs, dated 08.11.2017, as well as, in prior to the said notification, there was no requirement to pay the duty, had exercised the discretion. In the considered opinion of this Court, the discretion came to be exercised by the CESTAT in the facts and circumstances of the said case and that apart, the Commissioner of Customs has also disposed of the matter vide order No.12/2018 dated 15.10.2018 and nothing remains for further adjudication in this matter for the reason that the present appeal technically has become infructuous. Other issues left open to be decided in an appropriate proceedings and therefore, it need not be answered - the disposal by the CESTAT in the facts and circumstances of the case, especially, in the light of the time at which the notification came to be issued and that prior to the notification, the duty on the imported goods was also not paid. Therefore, it is answered in negative against the Appellant/Revenue.

Summary

Issues:
Challenge to final order of CESTAT on Bank Guarantee and provisional release under Customs Act, 1962.

Analysis:
The appellant, the Revenue, challenged a final order of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) regarding the amount fixed for filing appeal under Section 129E of the Customs Act, 1962 as the quantum of Bank Guarantee under Section 110A for release of seized goods. The Tribunal reduced the Bank guarantee from 60% to 7.5% of the duty liability, citing no malafide intention by the importer in clearing goods without duty payment. The Commissioner of Customs had allowed provisional release with conditions, leading to the appeal. The Tribunal considered the time of the duty imposition notification and the importer's actions before and after the notification, exercising discretion to reduce the Bank guarantee. The Tribunal directed the Customs authorities to finalize the case expeditiously. The Revenue contended that the Tribunal's reduction of the Bank guarantee was not in order and challenged the maintainability of the appeal before CESTAT.

The respondent, the importer, argued in compliance with CESTAT's direction and challenged the legality of the Commissioner of Customs' subsequent order. The Commissioner's order included denial of duty exemption, confiscation of goods, imposition of fines, and penalties. The importer filed an appeal before CESTAT and sought early disposal, facing resistance from the Revenue. The respondent importer highlighted the developments in the case, emphasizing the pending appeal and application for speedy disposal. The Commissioner's order was detailed, confirming differential duty, interest, and imposing penalties on the importer and related parties.

The Court considered the facts, including the timing of the duty imposition notification and the importer's actions, finding no malafide intention in clearing goods without duty payment before the notification. The Tribunal's exercise of discretion in reducing the Bank guarantee was upheld, considering the circumstances. The Court noted that the Commissioner of Customs had finalized the case, making the present appeal technically infructuous. Substantial questions of law regarding Bank Guarantee and jurisdiction were left open for appropriate proceedings. The Court dismissed the appeal against the Revenue, upholding CESTAT's decision on the Bank guarantee reduction and finding no further adjudication necessary in the matter.