2016 (6) TMI 955 - HC - Customs

Provisional release of seized goods - seizure of Cigarettes and restricted R-22 Gas, which were admittedly imported by the petitioner company by concealment in aluminium scrap and mis-declaration of material particulars in the three Bills of Entry - It is submitted that although the R-22 Gas is a restricted item for import, and the goods Cigarettes and the R-22 Gas were imported by concealment, however, none of these goods are expressly notified as prohibited for importation. Imported Goods can only be seized under Section 110 of the Act, when there exists a reasonable belief that the same are liable to confiscation under Section 111. Held that - In the instant case the Cigarettes and restricted R-22 Gas were admittedly imported by concealment. None of the two goods are expressly prohibited for importation. Therefore, ultimately the petitioner company who is owner as well as importer would be entitled for an option to redeem the goods even upon adjudication. In such case, Section 110A concerning provisional release would be applicable. Although the petitioners have raised a substantial question of law regarding applicability of section 4(2) of the Code, which has prima facie merits. However, since the petitioners have shown their willingness to adopt the route of settlement and to discharge their duty liability even before issuance of notice under Section 28, we deem it appropriate to dispose of the petition at this stage - Goods allowed to be released with direction.

Summary

Issues:
Interpretation of Section 4(2) of the Code, Procedure under Sections 154, 157, 167, 172, and 177 of the Code, Mis-declaration in Bills of Entry, Redemption of seized goods under Section 125 of the Customs Act, Provisional release of seized goods under Section 110A, Settlement Commission's powers, Determination of duty by adjudicating authority, Genuineness of submitted invoices.

Analysis:
1. The primary issue revolves around the interpretation of Section 4(2) of the Code and the contention that Respondents are not following prescribed procedures under various sections despite no inconsistency in the Act. The petitioners have joined investigations by the DRI for seized goods, admitting mis-declaration in Bills of Entry, seeking provisional release by paying differential duty and invoking Settlement Commission's powers for immunity from penalty and prosecution.

2. The petitioners argue that seized goods, though imported by concealment, are not expressly prohibited for importation, entitling them to redeem goods upon adjudication under Section 125 of the Act. The Tribunal's interpretation in previous cases supports offering an option to pay fine in lieu of confiscation unless goods are expressly prohibited, ensuring a meaningful application of statutory provisions.

3. The case involves the provisional release of seized goods, particularly Cigarettes and R-22 Gas, with the DRI estimating local market value and proposing absolute confiscation. Despite objections on jurisdiction and duty determination, the Court permits conditional provisional release of Cigarettes upon payment of computed duty, submitting a bond for liabilities under the Act.

4. The genuineness of invoices submitted by the petitioner company is questioned by the Respondents, while the Court finds the submission reasonable and permits provisional release upon payment of computed duty in installments, with additional conditions for affixing warning labels on released packages.

5. The Court, acknowledging the petitioners' willingness to cooperate and settle the case, issues directions for investigations, issuance of notice under Section 28, settlement application filing, and empowers the Settlement Commission to decide issues related to Bills of Entry, including the release of R-22 gas, while ensuring no coercive steps are taken against the petitioners.

6. The writ petition is disposed of with directions for compliance with settlement procedures and protection granted to the petitioners, leaving room for raising legal issues regarding Section 4(2) of the Code if necessary in the future.