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2018 (7) TMI 109 - AT - CustomsProvisional release of goods - Seizure of goods on the charges of under valuation - Circular No. 35/2017-CUS dated 16.08.2017 - Held that - From the above Circular it is apparent that it prescribes a discrimination between the cases involving miss declaration and other. In the instant case the modus operandi as alleged by the Revenue is that the appellant were routing their import through the SEZ unit in order to achieve the object of under valuation. The negotiations for import were directly carried out by the appellants themselves with the foreign supplier but the import were routed through an intermediary in the SEZ Unit. There was an apparent attempt to commit fraud and in these circumstances lenient view in imposing the condition of provisional release cannot be taken. The provisional release was ordered after adjusting entire differential duty and additional amount equivalent to 15% of the said differential duty - appeal allowed in part.
Issues Involved:
1. Allegations of under-valuation and misdeclaration by importers. 2. Conditions for provisional release of seized goods. 3. Applicability of Circular No. 35/2017-Cus dated 16.08.2017. 4. Judicial precedents concerning provisional release and discretion under Section 110A of the Customs Act, 1962. Detailed Analysis: 1. Allegations of Under-Valuation and Misdeclaration by Importers: The appeals were filed by importers who purchased goods from a SEZ unit. The Directorate of Revenue Intelligence (DRI) seized the goods on charges of under-valuation. The modus operandi alleged involved misdeclaring the rate of imported goods from China and clearing them to domestic buyers under DTA Bills of Entry on payment of customs duty. The actual negotiated rate was higher than the declared rate, and the differential amount was sent through non-banking channels. This was evident from searches and statements of involved persons. 2. Conditions for Provisional Release of Seized Goods: The appellants approached the Revenue for provisional release of the goods, which was allowed on the condition of providing a bond of the re-determined assessable value supported with a bank guarantee covering the entire differential duty plus 25% of the re-determined assessable value. The appellants contested these conditions as harsh. 3. Applicability of Circular No. 35/2017-Cus dated 16.08.2017: The appellants argued that the Circular distinguishes between cases of mis-declaration and under-valuation, prescribing lenient conditions for the latter. They cited a similar case, Mala Petrochemicals & Polymers, where lenient conditions were imposed. The Circular and relevant judicial precedents were discussed, emphasizing that each case turns on its peculiar facts and that the discretion under Section 110A must be exercised fairly and reasonably. 4. Judicial Precedents Concerning Provisional Release and Discretion under Section 110A of the Customs Act, 1962: The Revenue argued that the case involved a managed fraud and that the Circular prescribes relaxed conditions only for cases not involving mis-declaration. They relied on the decision of the Hon’ble High Court of Madras in Malabar Diamond Gallery Pvt. Ltd., which emphasized the discretion in imposing conditions for provisional release and the need to consider the relevance and risk. The Tribunal reviewed the submissions and found that the appellants were routing imports through an SEZ unit to achieve under-valuation, indicating an attempt to commit fraud. Therefore, lenient conditions for provisional release were not justified. However, considering judicial precedents, the Tribunal revised the bank guarantee requirement to cover 100% of the differential duty, while other conditions remained unchanged. Conclusion: The Tribunal partly allowed the appeals, modifying the conditions for provisional release to require a bank guarantee covering 100% of the differential duty, while maintaining other conditions. The judgment emphasized the need for discretion and fairness in imposing conditions for provisional release, considering the specific facts and circumstances of each case.
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