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TMI Blog2013 (4) TMI 307X X X X Extracts X X X X X X X X Extracts X X X X ..... 3800 Packets of Coated Gummed Paper from China at USD 11400.00 CIF Chennai. The above goods were shipped from M/s.Fancyco, China, vide Invoice No.FY122244, dated 19.11.2012 and filed Bill of Entry No.8711998, dated 10.12.2012 and claimed for clearance of goods for Home Consumption. (b) On the arrival of the subject goods at Chennai Port, the petitioner filed Bill of Entry for Home Consumption and sought for clearance of the goods and they had declared the value of the goods at USD 11400.00 (CIF Chennai) totally. Thereafter, the petitioner had requested the respondents to pass orders for clearance of the imported goods. Subsequently, the goods were assessed by the Proper Officer and the appropriate duty of Rs.1,81,532/- as assessed by the Proper Officer has also been debited by the petitioner on 10.12.2012. After payment of duty, on 03.01.2013, the petitioner was informed that the goods have been detained by DRI Officers under Mahazar. The samples from the goods detained on 03.01.2013 were taken by DRI Officers in the presence of representatives. (c) The petitioner, vide letter dated 12.01.2013 requested the Assistant Director of DRI to provisionally release the goods after taking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral representations to the respondents herein for the provisional release of the goods which are now lying in Chennai Port and the petitioner is entitled to clear the goods. The respondents have failed to exercise the statutory functions vested in them and not ordered the release of the goods, for which duty was also paid and thereby they have violated the fundamental rights of the petitioner guaranteed under Articles 19 and 21 of the Constitution of India. Aggrieved by the inaction on the part of the respondents in not ordering the release of the goods, for which duty has also been paid and also on the unreasonable attitude of the respondents, the petitioner has filed this writ petition for the above relief. 4. The third respondent filed a counter affidavit, stating that while the petitioner's firm imported Coated Gummed Paper, they undervalued the goods. Based on the documents recovered by the DRI, the actual value of the Gummed Paper appears to be USD 3 per packet. The goods declared as "Coated Gummed Paper" imported vide Bill of Entry No.8711998 dated 10.12.2012 was intercepted and examined on 03.01.2013. The declared rate was USD 3 per packet and the quantity imported was 38 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tage might hamper investigation with the resultant revenue loss. The petitioner may exhaust the legal remedies as prescribed under the Act instead of filing this Writ Petition. Under such circumstances, provisional release of the goods as sought for by the petitioner cannot be entertained. 5. I have heard the learned counsel appearing for the parties and perused the material documents available on record. 6. On an analysis of the entire facts, it would reveal that the petitioner-Company imported 760 Packages viz., 3800 Packets of Coated Gummed Paper from China at USD 11400.00 CIF Chennai. The above goods were shipped from M/s.Fancyco, China, vide Invoice No.FY122244 dated 19.11.2012 and Bill of Entry No.8711998, dated 10.12.2012 for Home Consumption. On the arrival of the subject goods at Chennai Port, the petitioner filed Bill of Entry for Home Consumption and sought for clearance of the goods and they had declared the value of the goods at USD 11400.00 (CIF Chennai) totally. Thereafter, the petitioner requested the respondents to release the above goods and the goods were assessed by the Proper Officer and the appropriate duty of Rs.1,81,532/- as assessed by the Proper Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elease of the goods, for which duty has also been paid and also on the unreasonable attitude of the respondents, the petitioner has come before this Court. 8. It is the case of the respondents that the goods in question were undervalued and they were seized under the Act. Further investigation in the subject matter is in progress and hence, provisional release of the goods as sought for by the petitioner could not be entertained. 9. While examining the claim of the petitioner for the provisional release of goods, the circumstances under which the import was done, have to be looked into and thereafter, the value so declared by the petitioner is a matter to be taken into account. The petitioner declared the value of the goods as USD 11400.00 (CIF Chennai) totally, which according to the respondents is low. The further investigation is yet to be completed and the adjudication proceedings are also to be made thereafter. When such is the situation, what is the condition for provisional release to be made, has to be examined. 10. In this regard, the learned counsel for the petitioner relied on various decisions of this Court and also the decision of the Supreme Court in the case of Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should furnish a bond. The learned counsel further submitted that in case the Department succeeds in the adjudication proceedings, it is not possible for the Department to recover any 'amount' if the goods are released. 13. It is seen that in Notification No.81/2011-Customs (N.T.), dated 25.11.2011 issued by the Government of India, Ministry of Finance, Department of Revenue (Central Board of Excise and Customs), the customs (Provisional Duty Assessment) Regulations, 2011 were brought into force, which inter alia provided the following:- "1. Short title and commencement: (1) These regulations may be called the Customs (Provisional Duty Assessment) Regulations, 2011. (2) They shall come into force on the date of their publication in the Official Gazette. 2. Conditions for allowing provisional assessment.- (1) Where- a) an importer or an exporter, as the case may be, is unable to make self-assessment under sub-section (1) of Section 17 of the Customs Act, 1962 (52 of 1962) and makes a request in writing to the proper officer for assessment; or b) the proper officer on account of any of the grounds specified in sub-section (1) of Section 18 of the said Act, is not able to verif ..... 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