2019 (3) TMI 1451 - HC - Customs

Release of consignments - section 110A of CA - import of gift and stationery items - seizure of goods - parallel set of invoices - scope of the term provisional release and provisional assessment of goods - Held that - The Division Bench of the Delhi High Court in the case of Bhaiya Fibres Ltd., 2007 (12) TMI 330 - DELHI HIGH COURT had arrived at the conclusion that there was no distinction between provisional release and provisional assessment of goods. This was since provisional release of goods, in terms of Section 110A of the Customs Act, 1962, was also based on the rate adopted for the provisional assessment of goods and in the case of valuation, the worksheet prepared by the Department as against that prepared by the petitioner. The facts of the present case do not warrant deviation from the consistent view that has been taken, not only by the Benches of this Court, but also by the decisions arrived at by the Delhi High Court in the case of Navshakti Industries 2010 (5) TMI 592 - DELHI HIGH COURT . In the present case, the items on hand constitute stationery and gift items and decorations to be used in children s parties. The Circular relied on by the revenue is one that would apply if the proceedings for adjudication had been completed and the liability quantified. This is not so in the present case where proceedings for adjudication are yet to be initiated - In the facts and circumstances of the present case, it would suffice that the petitioner remit 30% of the differential duty and execute a personal bond for the remaining 70%, upon remittance and furnishing of which, the goods shall be released forthwith. On the aspect of under invoicing, the Department is at liberty to initiate proceedings for adjudication that will be concluded after hearing the petitioner and in accordance with law. Since the goods detained constitute stationery, gift and decorations for children s parties, and in the light of Regulation 6(l) of the Handling of Cargos in Customs Area Regulations, 1963, demurrage and detention charges for the entire period form date of detention to the date of clearance stand waived. Petition disposed off.

Summary

Issues:
Challenge to order of Deputy Commissioner of Customs regarding detention of imported goods, imposition of conditions for release, comparison with previous court decisions, interpretation of relevant laws and guidelines, waiver of demurrage and detention charges.

Analysis:
1. The petitioner challenged the order of the Deputy Commissioner of Customs regarding the detention of imported gift and stationery items. Despite being freely importable goods with correct classification and description, the goods were seized due to alleged under valuation based on parallel sets of invoices found. The petitioner sought release through representation and subsequent court orders.

2. The respondent imposed conditions for release, requiring execution of a bond and bank guarantee covering differential duty and probable fines. The petitioner argued that the conditions were onerous, especially considering the freely importable nature of the goods and the potential to disprove under valuation allegations during adjudication proceedings.

3. The petitioner's counsel cited previous court decisions, including those from the Delhi High Court and Supreme Court, where petitioners were directed to pay a percentage of the differential duty for release of goods. These decisions emphasized the necessity of provisional release based on certain conditions to safeguard revenue interests.

4. The court considered the arguments and past decisions, concluding that the facts of the case did not warrant deviation from the consistent view taken by previous judgments. In this case, the court directed the petitioner to remit 30% of the differential duty and execute a personal bond for the remaining 70% for immediate release of the goods. The Department was permitted to initiate adjudication proceedings regarding under invoicing.

5. Additionally, the court addressed the waiver of demurrage and detention charges for the detained goods, citing relevant regulations. The court granted the waiver considering the nature of the goods and specific circumstances of the case, providing relief to the petitioner in this aspect.

6. In conclusion, the court disposed of the writ petition and related matters, providing specific directions for the release of goods, payment of differential duty, execution of bonds, and waiver of demurrage and detention charges. No costs were imposed in this judgment.