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TMI Blog2010 (5) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 47 of the Act provides for clearance of goods on payment of duty, unless goods are prohibited goods. It is not the case of the respondents that goods are prohibited goods. It is also not their case that duty assessed under section 17 or 18 has not been paid. In such a situation, non clearance of goods may be justified for minimum period required for assessment. In no case, non clearance of goods for months can be justified. Non clearance seriously affects rights of lawful importer and fair procedure being constitutional mandate, no authority can plead unlimited power of non clearance for its own incompetence as a justification beyond reasonable period – officers of customs department are not immune from accountability against abuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rges. Even Deputy Commission, Customs wrote to the Additional Director, DRI vide letter dated 18.3.2010, Annexure P.11 that samples having already been taken, the party was suffering heavy demurrage on account of non clearance of consignment and, therefore, the goods may be released, unless required for examination or re-examination. It was also mentioned that bill of entry had already been assessed provisionally by the proper officer. Still, the goods were not released. Accordingly, this petition was filed in this Court on 22.3.2010 stating that the goods were being illegally detained. Reliance was also placed on instructions Annexure P.12 dated 22.8.2006 to the effect that first examination of goods should take place in 48 hours and asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law, the same could not be allowed to be misused without there being any prima-facie case and without following the prescribed procedure. The undervaluation could be taken care of by assessment or provisional assessment and unless the goods are prohibited goods, the power of seizure could not be exercised so as to deprive the importer of use of goods for a long time. It is not the case of the respondents that the goods are prohibited goods. As per letter dated 17.4.2010, a copy of which was produced at the time of hearing, only allegation of the DRI was that dispute was about classification of goods. Reliance has been placed on judgment of this Court in Mapsa Tapes Private Limited vs. Union of India, 2006(201) ELT 7, wherein it was observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of the warrants in question which purport to be under the first alternative of S.96(1) of the Criminal Procedure Code." 16. The said view has been reiterated in several decisions of the Hon'ble Supreme Court. 17. At the same time, power of search and seizure affects not only right of possession and enjoyment of property but also privacy of a citizen. It also affects right of personal liberty under Article 21 of the Constitution. Procedure for affecting such a right itself has to be fair and reasonable, as held by the Hon'ble Supreme Court in Maneka Gandhi v. Union of India, AIR 1978 SC 597. Referring to this aspect, in a recent decision in District Registrar and Collector, Hyderabad and another v. Canara Bank etc., AIR 2005 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the present case because the respondents have not been able to satisfy the court that due process of law was followed while taking drastic step of search and seizure in the case of the petitioner. On this ground alone, we are of the view that action of search and seizure is liable to be quashed and accordingly we answer the second issue in favour of the petitioner and against the revenue." 8. Learned counsel for the respondents relied upon judgment of the Madras High Court in Bhoormal Premchand v. Collector of Cus., Madras, 2000(125) ELT 118, wherein after referring to the judgment of the Hon'ble Supreme Court in Collector of Customs, Madras v. Nathella Sampathu Chetty, AIR 1962 SC 316, it was observed that temporary detention for chec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs could get the goods released on furnishing requisite bond under section 110A of the Act. This contention is misconceived as Section 110A applies only when seizure is effected under Section 110. 11. We are of the view that while officers of Custom Department may have justification to verify whether goods were prohibited or were otherwise liable to confiscation or to assess and recover duty, they are not immune from accountability against abuse of power by detaining goods for indefinite period on the ground that they were in the process of checking the value or nature of goods. They are under legal obligation to do so promptly and if by reason of their incompetence they are unable to do so, detention of goods beyond reasonable time cann ..... X X X X Extracts X X X X X X X X Extracts X X X X
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