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2022 (5) TMI 88 - HC - CustomsProvisional release of seized goods - pendency of withholding of the goods concerned - Multi-Function Devices - prohibited goods or not - notification dated 18.03.2021 - HELD THAT - In this regard, the policy decision taken by the Government i.e., the Revenue has already been put under challenge in a batch of cases before this Court, which are said to be pending. Moreover, in the case of M/S DELHI PHOTOCOPIERS VERSUS THE COMMISSIONER OF CUSTOMS (GR. 5) CHENNAI II ORS. 2021 (8) TMI 1244 - SUPREME COURT , the Hon'ble Supreme Court has taken note of these factors, where the arguments advanced on behalf of the Revenue before the Hon'ble Supreme Court was that, on and from 01.04.2020, the goods, according to the Department, are clearly prohibited goods and on and from that date, unless an order is made under Section 125 of the Customs Act, the goods stands confiscated, the Hon'ble Supreme Court had stayed the confiscation process and also has observed that, the notification dated 01.04.2020 is the subject matter of controversy before the Hon'ble Supreme Court, particularly in view of the subsequent notification dated 18.03.2021. Therefore, the goods which are in question were allowed to be released by way of provisional release on the same terms and conditions, which means, the enhanced duty has to be paid by the petitioners/importers as a condition precedent for getting release of these goods by way of provisional release. Therefore, as of now, unmindful of the pendency of the litigations with regard to the applicability or otherwise of the notifications, namely notification dated 01.04.2020 or 18.03.2021, independently the prayer sought for by way of Mandamus can be considered and granted, because of the aforestated judgment, where, the learned Single Judge M/S. BEST MEGA INTERNATIONAL VERSUS THE COMMISSIONER OF CUSTOMS (GR. 5) , THE ADDITIONAL COMMISSIONER OF CUSTOMS (GR. 5) , THE DEPUTY COMMISSIONER OF CUSTOMS (GR. 5) , THE DIRECTOR GENERAL OF FOREIGN TRADE AND ADDITIONAL SECRETARY TO THE GOVT. OF INDIA 2021 (2) TMI 826 - MADRAS HIGH COURT has been confirmed by the Hon'ble Supreme Court in M/S DELHI PHOTOCOPIERS VERSUS THE COMMISSIONER OF CUSTOMS (GR. 5) CHENNAI II ORS. 2021 (8) TMI 1244 - SUPREME COURT , where it was held that The confiscation of these goods is stayed. The Notification dated 01.04.2020 is the subject matter of controversy before this Court, particularly in view of a subsequent Notification dated 18.03.2021 that has been pointed out by Mr. Arvind Datar, learned senior counsel. There shall be a direction to the respondents to consider the plea of the petitioners to release the goods by way of provisional release on condition that, the petitioner shall pay/deposit the enhanced duty amount. On receipt of such enhanced duty amount paid by the petitioners, the goods in question shall be released within a period of three weeks thereafter - petition disposed off.
Issues:
1. Whether goods can be released by way of provisional release during the pendency of withholding. 2. Interpretation of notifications dated 01.04.2020 and 18.03.2021 regarding the importation of Multi-Function Devices. 3. Validity of the plea for Mandamus seeking provisional release of goods. Analysis: 1. The petitioners imported Multi-Function Devices and sought provisional release during withholding. The main issue was whether these goods could be released provisionally under the Customs Act. The Senior Counsel for the petitioners argued that previous court decisions favored provisional release in similar cases. 2. The dispute centered around notifications dated 01.04.2020 and 18.03.2021. The Revenue argued that the goods were prohibited under the 01.04.2020 notification, making them ineligible for provisional release. However, the Senior Counsel cited Supreme Court orders allowing provisional release pending adjudication, despite the notifications. 3. The Court considered the conflicting arguments and previous judgments. It noted the Supreme Court's stay on confiscation and provisional release orders based on payment of enhanced duty. The Court emphasized that the plea for Mandamus could be granted independently of the notification disputes, following the precedent set by previous court decisions and the Supreme Court's confirmation. 4. Consequently, the Court directed the respondents to consider releasing the goods provisionally upon payment of enhanced duty within three weeks. Customs were instructed to quantify the duty promptly, and upon full payment, the goods were to be released. The order clarified that it did not hinder further Customs proceedings or adjudication. Additionally, it allowed for the consideration of waiver of demurrage charges upon application by the petitioners. 5. In conclusion, the Court disposed of the writ petitions, granting the plea for Mandamus for provisional release based on previous court decisions and the Supreme Court's confirmation. No costs were awarded, and connected miscellaneous petitions were closed.
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