2001 (7) TMI 350 - AT - Customs

Summary

Issues Involved:
1. Maintainability of the appeal.
2. Extension of time for issuance of show cause notice under Section 110(2) of the Customs Act.
3. Refusal of provisional release of the seized goods.

Detailed Analysis:

1. Maintainability of the Appeal:

The preliminary objection raised by the respondent's representative argued that the impugned order was administrative and not appealable. The respondent cited the Apex Court's decision in Designated Authority v. Haldor Topsoe A/S, which categorized the extension of time for investigation as an administrative order. However, the appellants contended that the order under Section 110(2) of the Customs Act was quasi-judicial and hence appealable. They supported their argument with decisions from the Apex Court, Calcutta High Court, and the Tribunal.

The Tribunal concluded that the impugned order was indeed quasi-judicial, requiring a judicial approach as it affected the rights of the importer/owner of the goods. Consequently, the preliminary objection was overruled, affirming the appeal's maintainability.

2. Extension of Time for Issuance of Show Cause Notice:

The Commissioner of Customs extended the time for issuing a show cause notice by another six months due to the ongoing investigation and overseas enquiries. The Tribunal noted that the extension under proviso to Section 110(2) of the Customs Act should be granted only on sufficient cause and not as a routine matter. The Commissioner must exercise this discretion judiciously, ensuring that the investigation could not be completed for bona fide reasons within the stipulated time.

The Tribunal upheld the Commissioner's decision, recognizing that the discretion was exercised judiciously based on the facts and circumstances, which prevented the completion of the investigation within the initial six months.

3. Refusal of Provisional Release of the Seized Goods:

The Commissioner refused the provisional release of the goods, citing that the goods would not be available for confiscation and their value was yet to be determined. The Tribunal found this approach unjustifiable, emphasizing that the Commissioner should have considered the Apex Court's rulings and the Board's instructions on provisional release and retention of goods.

The Tribunal highlighted that the Apex Court had ruled that the provisional release of goods does not preclude the Customs Authorities from levying redemption fines if the import is later found invalid. The Board's instructions also mandated that provisional clearance should be the rule, not the exception, and that goods should not be detained unnecessarily.

The Tribunal directed the Commissioner to release the seized goods provisionally, noting that penalizing the appellants for the DRI's inability to complete the investigation within six months was unfair.

Conclusion:

The appeal was partly allowed. The Tribunal upheld the extension of time for issuing the show cause notice but set aside the refusal of provisional release of the goods, directing the Commissioner to release the goods within one month.