2020 (5) TMI 69 - HC - Customs

Provisional release of seized goods - perishable goods - requirement of furnishing of bond/securities to the satisfaction of the customs officer - HELD THAT - The contention of the learned advocate for the customs authorities, cannot be accepted, inasmuch as, the law on the subject is that after seizure under Section 110 of the said Act, the goods may be released provisionally to the owner, pending adjudication, upon taking a bond from him or upon furnishing such security and fulfillment of such other conditions. The release as contemplated under Section 110(2) is unconditional release on account of the failure of the authority to initiate the confiscation proceedings within the period of six months whereas provisional release is a section giving a right to an importer to pray for a provisional release of perishable goods likely to be damaged due to pendency of the proceedings upon fulfillment of all conditions and furnishing of bond and security to the satisfaction of the authorities. Quantum of security that should be furnished - HELD THAT - The issue is not taken into consideration at this stage because this Court is not deciding on the provisional release which is entirely within the domain of the authorities. Petition disposed off.

Summary

Issues:
1. Challenge of non-consideration of application for provisional release of seized goods under Section 110(1) of the Customs Act, 1962.

Analysis:
The petitioner challenged the non-consideration of their application for provisional release of goods seized under Section 110(1) of the Customs Act, 1962. The petitioner filed an application seeking release of perishable goods, which had not been disposed of by the authorities. The delay in considering the application was deemed prejudicial as it could lead to irreparable damage to the seized goods. Subsequently, a representation was filed before the Additional Commissioner of Customs. The petitioner contended that the authorities were obligated to consider the application for provisional release under Section 110A, provided the necessary bond or securities were furnished.

Legal Interpretation:
The customs authorities argued that the provisional release could not be sought before the expiration of six months from the seizure date, as per Section 110(2) of the Customs Act. This section stipulates that failure to issue a show cause notice within six months would result in automatic release of goods to the petitioner. However, the court rejected this argument, emphasizing that provisional release allows for the release of goods pending adjudication upon fulfillment of conditions and security. It distinguished between unconditional release under Section 110(2) and provisional release, which is sought to prevent damage to perishable goods during proceedings.

Precedent and Decision:
The petitioner relied on the case of Priyanka Maurya vs. Commr. of Cus. (Preventive), Kolkata, to support their claim. The court refrained from determining the quantum of security required for provisional release, asserting that such decisions fall within the jurisdiction of the authorities. The petitioner was granted the liberty to present the cited judgment during the consideration of their applications. The court directed that once a decision is made, it must be communicated to the petitioner within four weeks of the order.

Conclusion:
The court clarified that it did not delve into the merits of the petitioner's claim, focusing solely on the procedural aspect of the application for provisional release. The writ petition was disposed of without any costs imposed. The parties were instructed to receive a certified copy of the order upon compliance with necessary formalities.