2023 (1) TMI 396 - HC - Customs

Seeking provisional release of goods - import of consignment of mobile parts - difference in the description and quantity of consignment - HELD THAT - On instructions learned Solicitor goes on to submit that Additional Commissioner of Customs, Air Cargo Complex, Meenambakkam, Chennai-600 027 is the 'Adjudicating Authority' for the purposes of Section 110A read with Section 2 (1) of said Act, he would pass orders afresh qua provisional release sought for by the writ petitioners under Section 110A and the orders would be served under due acknowledgement in an acceptable mode to writ petitioners within two working days from today i.e., on or before 06.01.2023. This submission is also recorded. Though obvious it is made clear that this Court has not expressed any view or opinion on the merits of the matter and as regards orders to be made by aforementioned officer i.e., 'Adjudicating Authority', all rights and contentions of both sides including the prayers made in the captioned writ petitions are preserved. Petition disposed off.

Summary

Issues:
1. Challenge to the conditions of provisional release order.
2. Interpretation of the communication as an order.
3. Availability of alternate remedy under Section 128 of the Customs Act, 1962.
4. Withdrawal of the impugned communications and fresh orders by the Adjudicating Authority.

Analysis:

Issue 1: Challenge to the conditions of provisional release order
The petitioners challenged conditions 2 and (a) of 3 of the impugned order regarding provisional assessment and differential duty. The petitioners argued that these conditions were contrary to the Navshakti Industries Pvt. Ltd. case. The Revenue counsel highlighted the availability of an alternate remedy under Section 128 of the Customs Act, 1962. The petitioners contended that the impugned order violated Customs (Provisional Duty Assessment) Regulations, 2011, and sought interference in writ jurisdiction.

Issue 2: Interpretation of the communication as an order
The court examined whether the communication dated 06.12.2022, referred to as the impugned order, was indeed an order or merely a communication of approval for provisional release by the adjudicating authority. The Revenue counsel clarified that the communication was not an order but a communication regarding approval, and the actual decision or order had not been communicated to the petitioners. The absence of the decision or order being annexed to the communication raised doubts about its nature.

Issue 3: Availability of alternate remedy under Section 128
The court discussed the availability of an alternate remedy through an appeal under Section 128 of the Customs Act, 1962. It was noted that the decision or order under Section 110A for provisional release had not been communicated to the petitioners, rendering the alternate remedy inapplicable until the order was officially communicated. The court emphasized that a decision or order not communicated held no legal standing.

Issue 4: Withdrawal of impugned communications and fresh orders
Subsequently, the impugned communications were withdrawn, and the Adjudicating Authority undertook to pass fresh orders regarding the provisional release sought by the petitioners under Section 110A. The orders were to be served to the petitioners within a specified timeframe, preserving all rights and contentions of both parties. The court clarified that no opinion on the merits was expressed, and the petitions were disposed of without costs.

This comprehensive analysis addresses the challenges to the conditions of the provisional release order, the interpretation of the communication as an order, the availability of an alternate remedy under Section 128, and the subsequent withdrawal of impugned communications for fresh orders by the Adjudicating Authority.