9911796707
TMI Blog2013 (6) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... No.950423 and 950422) from Bombardier Aerospace Inc., USA - has been seized. The writ petition is also directed against the order dated 29.01.2013 issued by the respondents whereby the said Aircraft, which was seized purportedly under Section 110 of the Customs Act, 1962 ('Act' for short) by the DRI, Ahmedabad, was directed to be provisionally released under Section 110A of the said Act subject to the fulfillment of the conditions as under: - "2. In this regard, I am directed to inform you that competent authority has allowed provisional release of the above said Aircraft under Section 110A of the Customs Act, 1962, subject to the fulfilment of the following conditions: - (i) You will execute a bond for provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing used by the promoters of the petitioner-company and not for passenger service or charter service a NSOP-holder was required to do under the Civil Aviation Rules and the conditions of the notification under which the said aircraft was imported. The said aircraft was imported by the petitioner under the Customs notification No.12/2012 and the Central Excise Notification No.12/2012. The said aircraft was imported on 4.5.2012 and the bill of entry of that date was assessed to duty and the aircraft was cleared for home consumption on payment of the concessional rate of duty of 2.5% as against the normal 3% duty that was applicable for imports of such aircrafts. The petitioner paid duty amounting to Rs. 1,67,95,428/-. According to the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed counsel for the petitioner submitted at the outset that he is not challenging this condition and that he is willing to execute the bond for the sum of Rs. 70 crores as required by the provisional release order dated 29.01.2013. The actual grievance is with regard to the condition which requires the petitioner to provide security in the form of a bank guarantee for a sum of Rs. 16 crores. 4. According to the learned counsel for the petitioner, this condition is extremely onerous, harsh and burdensome inasmuch as it is more than 100% of the differential duty even as per the revenue/respondents. The learned counsel for the petitioner submitted that there are no prescribed guidelines for the amount of security that ought to be insisted upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seizure under Section 110A of the Act, particularly in a case such as the present where the imported goods were unconditionally cleared by the Customs Authorities in the first instance. 10. That being the position, there is no option but to permit the release of the goods of the Appellants on their furnishing a bond of 20% of the differential duty that is to say the duty claimed by the Respondents minus the duty already paid by the Appellants in the first instance. Condition No. (i) imposed by the order dated 9th January, 2008 would stand modified to that extent." 5. The decision in Navshakti Industries (supra) was not accepted by the Revenue and they filed a Special Leave Petition before the Supreme Court. Special leave was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a period of three months, from the date of receipt of a copy of this order. In terms of the aforesaid order, the appeal stands disposed of. We, however, make it clear that while passing the aforesaid order, we have not expressed any opinion or views on the merits of the dispute which shall be independently considered by the competent authority." 6. It is apparent from the above that while this Court had required the furnishing of a bond of 20% of the differential duty, the Supreme Court had altered that condition by requiring a bank guarantee for 30% of the differential amount. The situation which obtained in Navshakti Industries Pvt. Ltd. (supra) was somewhat similar to the fact situation of the present case. In Navshakti In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L-906-HC-MUM-CUS) had taken a different view and had sought to distinguish the case of Navshakti Industries (supra) as decided by this Court. We have gone through the said decision of the Bombay High Court in the case of Apollo Cranes Pvt. Ltd. (supra). We may point out straightaway that the said decision has been rendered without noticing the decision of the Supreme Court in Navshakti Industries (supra) which was rendered on 4.5.2011. Moreover, the decision of the Bombay High Court, with respect, appears to have misread the decision of this Court in Navshakti Industries (supra). What this Court said was there was no prescribed procedure or guidelines for imposing conditions with regard to the furnishing of a security and, therefore, as a f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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