9911796707
TMI Blog2013 (3) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... on 15-6-2011 which too was detained for investigation. On 11-7-2011, 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 14-6-2011 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 19-8-2011 requesting for wavier of the condition for bank guarantee in respect of shipment under bill dated 15-6-2011 and further requested release of bank guarantee of Rs. 2 crores furnished earlier. It was stated that bank realization certificate towards export proceeds in respect of the said bills were received on 6-7-2011. 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 bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s such taking into account the overall facts and circumstances of the case, we hold that the earlier bank guarantee of Rs. 2 crores executed by the 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 22-9-2012, it is not possible to permit such export. The sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t)" 6. It is contended that petitioner's goods cannot be held up especially after the Customs Authorities suffered an order adverse to them by the CESTAT directing release of the goods. It is also urged that the provisional release order was made on 11-7-2011 by the Superintendent ICD-Tuglakabad and again by an order-in-original dated 8-9-2011 by the Commissioner of Customs. The export therefore have not been permitted, the petitioner was aggrieved by the condition imposed with regard to furnishing of bank guarantee which was ultimately set aside. In these circumstances the CBEC's Circular dated 22-9-2011 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 18-1-2012) 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 af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds in question are liable to confiscation under the Customs Act, 1962 and thereafter the provisions of Section 110A of the Customs Act, 1962 would come into play. However, there may be situations when the goods are to be detained for purpose of tests etc. to confirm the declaration. In such cases the endeavour should be to quickly undertake the necessary action (test/enquiry etc.) and take appropriate legal action thereafter so that the period of detention is kept to the minimum. Thus, the following course of action is prescribed in respect of goods entered for exportation. (a) In case the export goods are found to be misdeclared 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorities did not permit the exports to be made under the scheme which had been applied for, i.e. DEPB Scheme, saying that the shipment could not be completed by a cut-off date for the "Let Export Order" mentioned by the Circular dated 22-9-2011, i.e. 30th September, 2011. 10. It would be immediately apparent that the respondents in this case are, in effect, undermining the permission granted earlier by the customs authorities by permitting export as far back as on 11-7-2011. The petitioner could not take advantage of the clearance due to an oppressive condition imposed, i.e. furnishing 25% guarantee (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 cond ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
