2021 (11) TMI 129 - HC - Customs

Seeking relief and protection from unjustified investigation being carried out by respondent No.4 - import of Mercedes-Benz Engine Oil - undervaluation - import is from related parties or not -tri-Partite Agreement - HELD THAT - As for the aspect of undervaluation it is for the petitioner to make out a case before the adjudicating authority in the first instance in support of the contention that the duty has been correctly paid by them on the transaction value. We do not find it appropriate or any reason to interdict with the investigation being carried out by the respondent No.4 into the aspect of undervaluation at this stage, as it is always open for the petitioner to resort to appropriate remedies under the Act, for satisfying the authorities that the duty has to be paid on the transaction value and not on the basis of the MRP label affixed on the retail packs. It is for the petitioner to place all the materials including the Tri-Partite Agreement, invoices before the respondent No.4, in support of its case. Whether the continuance of the seizure is in accordance with the provisions of the said Act and whether the petitioner is entitled to a direction to the respondent No.4 for release of the consignments seized? - HELD THAT - The first consignment which is seized was imported vide Bill of Entry dated June 1, 2020. The other consignment was imported vide Bill of Entry dated October 7, 2020. Both these consignments were placed under seizure by respondent No.4. The seizure memo dated October 19, 2020 in respect of goods imported vide Bill of Entry dated June 1, 2020 records that based on the examination and investigation initiated, it appeared that goods were mis-declared with respect to value. Therefore, under the reasonable belief that the above mentioned goods have been imported into India in contravention of Customs Act, 1962, and appear to be liable for confiscation under 111(m) of the Customs Act, 1962, in exercise of the powers conferred on me under section 110(1) of the Customs Act, 1962. The amendment to sub-section 2 of Section 110 of the said Act gives power to the appropriate authority to extend the period for issuing show cause notice in the case of seized goods by a further period of six months and also to provide exemption from application of time limit of six months to cases in respect whereof an order of provisional release of seized goods has been passed - the rigors of sub-section (2) of Section 110 of the said Act will continue to apply as the character of the goods continue to be goods seized under sub-section (1). The proper officer then is obliged to follow the procedure prescribed in sub-section (2) of Section 110 of the said Act, in that he has to issue notice under clause (a) of section 124 of the said Act within six months of the seizure of the goods. We have already observed that the notice under clause (a) of Section 124 within six months of the seizure is not issued and therefore the consequence of release must follow. It is obvious that the respondents have exceeded the time limit to keep the consignments under seizure and are not entitled to detain the goods any further, hence we have no hesitation in entertaining the present petition under Article 226 of the Constitution of India despite availability of alternate remedy. The respondents are directed to forthwith release the two consignments of Mercedes-Benz Engine Oil imported vide Bill of Entry No.7801383 dated June 1, 2020 and Bill of Entry No.9094841 dated October 7, 2020 on completion of necessary legal formalities and in any case within the period of two weeks from date of compliance of all legal formalities - Petition allowed in part.

Issues Involved:
1. Jurisdiction of the Court under Article 226 of the Constitution of India.
2. Legality of the investigation into alleged undervaluation.
3. Seizure and provisional release of consignments.
4. Compliance with Section 110(2) of the Customs Act, 1962.
5. Availability of alternate remedies under the Customs Act.

Detailed Analysis:

Jurisdiction of the Court under Article 226 of the Constitution of India:
The petitioner invoked the jurisdiction of the High Court under Article 226 of the Constitution of India, seeking relief from an investigation and seizure of consignments. The respondents argued that the writ petition was premature and that the petitioner had statutory remedies available under the Customs Act. The Court, however, entertained the petition, emphasizing that Article 226 is not meant to short-circuit statutory procedures except in extraordinary situations.

Legality of the Investigation into Alleged Undervaluation:
The petitioner challenged the investigation into the alleged undervaluation of imported Mercedes-Benz Engine Oil. The Court refrained from interfering with the ongoing investigation, stating that it was the petitioner's responsibility to cooperate and make their case before the adjudicating authority. The Court noted that the petitioner could present all relevant materials, including agreements and invoices, to support their contention that the duty was correctly paid based on the transaction value.

Seizure and Provisional Release of Consignments:
The petitioner's consignments were seized on grounds of undervaluation, and provisional release was granted under onerous conditions, which the petitioner did not avail. The Court examined the seizure under Section 110 of the Customs Act and noted that the seizure memo indicated a reasonable belief of misdeclaration of value, justifying the seizure.

Compliance with Section 110(2) of the Customs Act, 1962:
The Court focused on whether the continued seizure was in accordance with Section 110(2) of the Customs Act, which mandates that if no notice is given under Section 124(a) within six months of seizure, the goods must be returned. The Court found that no such notice was issued within the stipulated period, nor was the period extended by the Principal Commissioner or Commissioner of Customs. Consequently, the Court held that the seized goods should be returned to the petitioner.

Availability of Alternate Remedies under the Customs Act:
The respondents argued that the petitioner had alternate remedies under the Customs Act and that the writ petition should not be entertained. The Court, however, found that the statutory time limits for retaining the seized goods had been exceeded, justifying the petition under Article 226 despite the availability of alternate remedies.

Conclusion:
The Court directed the respondents to release the two consignments of Mercedes-Benz Engine Oil within two weeks, subject to the completion of necessary legal formalities. The Court clarified that this order would not preclude the competent authority from proceeding against the petitioner in accordance with the law. The writ petition was partly allowed, with no costs awarded.

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