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TMI Blog2013 (6) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... eizure memo dated 29.12.2012 issued by the respondents whereby the petitioners Aircraft - Challenger - 604-MSN-5629 (with two General Electric CF-34-3B Engines Sr. 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 provisional release of the said Aircraft for Rs. 70,00,00,000/- (Rupees Seventy Crores only); (ii) You will provide security in the form of a Bank Guarantee for a sum of Rs. 16,00,00,000/- (Rupees Sixteen Crores only). The Bank Guarantee should contain a clause undertaking the self renewal of the Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned counsel for the respondents, the show cause notice would be issued in due course. That being the position, the issue as to whether the petitioner contravened any conditions of the exemption claimed by it would be adjudicated upon by the adjudicating authority and we do not wish to enter into that arena of controversy. The limited point that is before us is whether the conditions imposed under the provisional release order dated 29.01.2013 are reasonable or are they too harsh and burdensome on the petitioner. If we go back to the conditions which have been imposed by the provisional release order of 29.1.2013, we find that the petitioner has been required to execute a bond for the provisional release of the aircraft for the sum of ₹ 70 crores. According to the petitioner, the value of the aircraft is approximately Rs. 67 crores whereas according to the respondents, the market value of the aircraft is ₹ 70 crores and that is why the bond for the said amount of Rs. 70 crores has been insisted upon by the respondents. The learned 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 granted and the resultant Civil Appeal No.3940/2011 was disposed of by the Supreme Court in the following manner:- Leave granted. The present appeal is directed against the judgment and order dated 11th May, 2010 passed by the Division Bench of the High Court of Delhi directing the appellants herein to clear the goods of the respondents on their furnishing a bond of 20% of the differential duty to the satisfaction of the concerned Commissioner of Customs. The appellants have filed the present appeal being aggrieved by the aforesaid order in respect of which it is being contended that the aforesaid order passed by the High Court is erroneous as the amount for which the bond is to be furnished by the respondents is on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing bank guarantee of ₹ 16 crores, which was approximately 130% of the alleged differential duty amount, was clearly arbitrary as it was harsh, burdensome and onerous. 7. The learned counsel appearing on behalf of the respondents contended that it was well within the rights of the respondents to require the furnishing of a bond as also a security while directing provisional release of goods under Section 110A of the said Act. It was also contended that the Bombay High Court in Apollo Cranes (P) Ltd. vs. Union of India: 2012 (275) ELT 148 (Bom.) = (2011-TIOL-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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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