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TMI Blog2013 (9) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... dule to the Customs Tariff Act and claiming the benefit of Notification No.21/2002-Cus. dt. 01/03/2002 (Sl.No.352). The value declared in the Bill of Entry was USD 3 million. Based on intelligence to the effect that the appellant had misclassified and undervalued the vessel to evade payment of appropriate duty of customs, the Directorate of Revenue Intelligence (DRI) launched investigations into the above import on 08/09/2011. Numerous documents were recovered and statements recorded by the DRI. From the results of the investigations, it appeared to the DRI that the vessel was not classifiable under head 8901 as a vessel for transport of persons or goods but the same was appropriately classifiable under heading 8903 as a vessel for pleasure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter dt. 18/06/2012 requested the Commissioner of Customs, Mangalore for provisional release of the vessel which had been seized on 29/05/2012. Apropos of this request, the Commissioner ordered provisional release of the vessel subject to two conditions viz. (i) furnishing of a bond for an amount of Rs.35,80,74,723/- being the value of the seized vessel as determined by the department and (ii) furnishing of security in the form of bank guarantee (with auto renewal clause) for an amount of Rs.14 crores. This order of the Commissioner, made under Section 110A of the Customs Act, was communicated to the appellant by his Assistant Commissioner in a letter dt. 03/07/2012. 5. The conditions imposed by the Commissioner for provisional release of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel for the petitioner, I direct the Appellate Tribunal to dispose of the appeal within three weeks from the date of its filing and removal of defects, if any. All contentions of both the parties are kept open. Petition disposed of. 6. We have perused the records and heard both sides in terms of the Honble High Courts order ibid. It is not in dispute that this appeal is maintainable under Section 129A(1)(a) of the Customs Act against the Commissioner's order communicated to the appellant by the Assistant Commissioner in letter dt. 03/07/2012, which reads as follows:- Please refer to letter dated 18.06.2012 received in this office on 28.06.2012 on the above subject. In this connection you are hereby informed that the Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el (pending adjudication of the show-cause notice) to the appellant against production of appropriate bond and further security and on such further condition as may be prescribed in the discretion of the adjudicating authority. In the instant case, the Commissioner has ordered provisional release of the vessel to the appellant against furnishing of a bond for an amount equal to the value of the vessel determined in the show-cause notice and also against production of a bank guarantee (with auto renewal clause) for an amount of Rs.14 crores. According to the appellant, these conditions stipulated by the adjudicating authority are harsh and contrary to the CBECs instructions and also to certain decisions of High Courts. In this connection, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use notice. Anything more than these would be extremely harsh. 10. We have given careful consideration to the submissions. It is not in dispute that an element of discretion is inbuilt in Section 110A of the Customs Act. But this discretion cannot be exercised in an arbitrary manner. The adjudicating authority in the context of invoking Section 110A of the Act should consider all the relevant factors such as the nature of the goods, the nature of the dispute, the conduct of the party, the balance of convenience etc. The order passed under Section 110A should also disclose that the relevant factors were considered and the conditions stipulated for provisional release of the goods should match the interest of the Revenue as evaluated in a fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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