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TMI Blog2012 (9) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 which too was detained for investigation. On 11.07.2011, the goods were permitted to be released provisionally on execution of bond for the value equal to 100% of the declared value with bank guarantee for 25% of the bond amount. The petitioner requested for waiver of the condition of bank guarantee and relied upon a letter dated 14.06.2011 issued by the Deputy Commissioner Export (SIIB), ICD-Tuglakabad, that letter had stated that wherever goods that were neither seized nor confiscated should be provisionally cleared, but on the condition to benefit the exporter, would not be released till finalization of the investigation. The petitioner made a further representation on 19.08.2011 requesting for wavier of the condition for bank guarantee in respect of shipment under bill dated 15.06.2011 and further requested release of bank guarantee of `.2 crores furnished earlier. It was stated that bank realization certificate towards export proceeds in respect of the said bills were received on 06.07.2011. 3. The petitioner's goods were not released and there were complete inaction by the Customs Authority. This impelled it to approach the Court in a previous writ petition being WP(C) No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant should be considered as sufficient to cover present consignment also considering the quantum of reasonable fine and penalty that can be imposed in this case. Therefore, there is no need to give further bank guarantee as directed by the Commissioner. The appellant is directed to furnish a bond for an amount equal to the value of goods and letter from the bank to the effect that the bank guarantee already executed will cover the dispute about this shipment also and the same would be kept alive. Consignment in question should be released provisionally immediately thereafter. In the circumstances, appellant_s prayer for refund of bank guarantee of Rs. 2 crores is rejected. Appeal is disposed in above terms." 5. The petitioner contends that after the CESTAT order various representations have been made requesting the Customs Authority to release the goods since it has furnished the requisite bond. However, the Customs Authority informed it by virtue of circular dated 22.09.2012, it is not possible to permit such export. The said circular reads as under: "To, M/s J.S. Designer Ltd. 190, 191, Patparganj Functional Industrial Estate New Delhi 110 092 Dear Sir, Subject : R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk guarantee which was ultimately set aside. In these circumstances the CBEC's circular dated 22.09.2011 is of no avail because the LET export order had been issued earlier and could not be availed on account of an illegal condition. It was not as if the order was made later. It is argued that if the CBEC's circular is understood by the impugned order of the Additional Commissioner, impugned in the present case (dated 18.01.2012) were to be upheld. The direction of CESTAT as well as that of any court can be easily circumvented by mention of some subsequent policy or decision. In other words, CBEC's circular would apply only in the case of exports or export orders to be issued after 30.09.2011. In this case, the orders were issued as far back as on 11.07.2011 and subsequently by the Commissioner on 08.09.2011. 7. The petitioner lastly relied upon the circular dated 22.09.2011 which itself states in para 14 that benefits of the DEPB scheme could be availed of only up to 30.09.2011 and LET orders would be eligible in that regard till that date and further stated that: "If for any valid reason, the LEO cannot be given on the EDI on the said date, then the Commissioner of Customs may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is prescribed in respect of goods entered for exportation. (a) In case the export goods are found to be mis-declared in terms of quantity, value and description and are seized for being liable to confiscation under the Customs Act, 1962, the same may be ordered to be released provisionally on execution of a Bond of an amount equivalent to the value of goods along with furnishing an appropriate security in order to cover the redemption fine and penalty. (b) In case the export goods are either suspected to be prohibited or found to be prohibited in terms of the Customs Act, 1962 or ITC (HS), the same should be seized and appropriate action for confiscation and penalty initiated. (c) In case the export goods are suspected of mis-declaration or where declaration is to e confirmed and further enquiry / confirmatory test or expert opinion is required (as in case of chemicals or textiles materials), the goods should be allowed exportation provisionally. The exporters in these cases are required to execute a Bond of an amount equal to the value of goods and furnish appropriate security in order to cover the redemption fine and penalty in case goods are found to be liable to con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antee (in relation to the declared value of the goods). The condition was held to be unjustified and unlawful by an order of the CESTAT in December, 2011. In such view of the matter, there can be no two opinions about the indefensible and utterly arbitrary position taken by the customs authorities, that the petitioner is disentitled to the benefit of the DEPB scheme by virtue of a restriction imposed on 22-9-2011, made effective nine days later. To inflict such an arbitrary condition, which is declared to be legally unsustainable, and yet insist that during the interregnum a fresh condition operates to deny the citizen the relief he is justly entitled to, is unfair and unreasonable. Furthermore the respondents are also wrong in contending that the issuance of the Tribunal's order on 8-12-2001 does not constitute a "valid reason" in terms of the circular dated 22-9-2001 warranting manual endorsement on the LEO after 30-9-2011. 11. In addition to the above reasons, the Court notices that the circular dated 4-1-2011 deals with situations under which confiscations can be resorted to. The underlying theme of the circular is that confiscation should be preceded by a speaking order, and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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