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TMI Blog2014 (1) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... rtionate. The adjudication is still pending and the allegations against the petitioner are still to be proved in the course of adjudication. What should be the correct assessable value has to be still determined on adjudication. The ends of justice would be met if the quantum of the Bank Guarantee is duly modified from 30% of the redetermined assessable value to 15% of the redetermined assessable value - no need to interfere with the terms and conditions imposed in the order for provisional release - Decided against assessee. - Writ Petition (L) Nos. 150-151 of 2013 - - - Dated:- 6-2-2013 - Dr. D.Y. Chandrachud and A.A. Sayed, JJ. Shri Ashok Singh, for the Petitioner. Shri Pradeep S. Jetly, for the Respondent. ORDER P.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proviso to Section 110(2) for six months by an order dated 2 August, 2011. An order for provisional release was passed on 12 December, 2011. The petitioners had moved the CESTAT. The Tribunal by its judgment dated 9 October, 2012 [2013 (281) E.L.T. 186 (Tri. - Mumbai)] came to the conclusion that an appeal is not maintainable against an order passed under Section 110A for provisional release. Ultimately, these proceedings came to be instituted for challenging the order of the Assistant Commissioner of Customs directing provisional release. 4. Two submissions have been urged on behalf of the petitioners. The first submission is that where a notice to show cause is not issued within one year of the detention of the goods, Section 110(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clared as Polyester Knitted Fabrics whereas the imported fabric was Viscose Fabrics. The affidavit in reply discloses that statements of Ashish Jain were recorded on 3 February 2011, 4 February, 2011, 22 March, 2011, 5 May, 2011, 13 May, 2011, 16 May 2011 and 4 July 2011. The transaction value of different types of fabrics imported by three firms is alleged to be not correct. A notice to show cause has been issued on 20 December 2012. The affidavit in reply sets out a chart pertaining to the consignments imported by each of the three firms, the Port of import, declared assessable value, actual assessable value and differential duty. As regards the petitioner, 190 consignments were imported through the ICD at New Delhi, CFS Mulund and ICD Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding six months. Section 124(a) provides that a notice has to be furnished before an order confiscating any goods or imposing any penalty on any person can be made. 7. Now Section 124(a) does not provide a period of limitation for issuance of a notice. Section 110(2) stipulates the consequence which is to ensue if no notice under Section 124(a) is furnished within six months of the seizure of the goods (extendable by a further period of six month). The consequence is that the goods have to be returned to the person from whose possession they were seized. However, this does not affect the validity of the notice under Section 124(a) even if it is issued beyond six months. [The Asstt. Collector of Customs v. Charan Das Malhotra, AIR 1972 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich has been urged on behalf of the petitioner. 9. The second submission of the petitioner relates to the conditions which have been imposed for provisional release. The order for provisional release requires the Petitioner to (i) Pay differential duty on the basis of the redetermined value as proposed by the DRI; (ii) Furnish a bond equivalent to the redetermined assessable value as proposed by the DRI; (iii) Secure a Bank Guarantee, subject to renewal, equivalent to 30% of the redetermined assessable value as proposed by the DRI for covering the redemption fine and penalty; (iv) Furnishing an undertaking that the petitioner will not dispute the identity of the goods during the course of adjudication or prosecution. The petitioner is agg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o apply to a case involving a serious fraud. In the present case, as the affidavit in reply indicates, there are allegations of serious fraud and malpractice on the part of the petitioners. Hence, we do not find that there is substance in that contention of the petitioners. 10. The Commissioner of Central Excise, in the present case has called for a Bank Guarantee on the basis of an amount computed at 30% of the redetermined assessable value, for covering a possible redemption fine and penalty. In our view, having regard to the fact that an amount of Rs. 2 crores is lying in deposit with the Customs authorities, the extent of the Bank Guarantee demanded appears to be disproportionate. The adjudication is still pending and the allegations ..... X X X X Extracts X X X X X X X X Extracts X X X X
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