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TMI Blog2014 (1) TMI 1346X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act and having regard to the foregoing reasons and discussions and considering the facts and circumstances of the case, provisional release of the goods in question is ordered conditionally - Decided partly in favour of assessee. - W.P.Nos.25862, 25874 and 25879 of 2013 - - - Dated:- 10-1-2014 - V. Dhanapalan,JJ. For the Petitioners : Mr. B. Kumar, Senior Counsel for Mr. B. Satish Sundar For the Respondents : Mr. S. Xavier Felix Senior Central Govt. Standing Counsel ORDER Heard Mr.B.Kumar, learned Senior Counsel for Mr.B.Satish Sundar, learned counsel appearing for the petitioners and Mr.S.Xavier Felix, learned Senior Central Government Standing Counsel for the respondents. 2. These writ petitions have been filed, seeking to quash the proceedings in File Nos.S.Misc.144/2013-SIIB, S.Misc.108/2013-SIIB, S.Misc.128/2013-SIIB dated 26.08.2013, issued by the 3rd respondent with a consequential direction to the respondents to release the imported goods (live goods covered under Bill of Entry Nos.2045972 dated 06.05.2013, 2014153 dated 02.05.2013 and already cleared goods on payment of appropriate duty as reassessed by the proper officer in terms of Section 17(4) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in intelligence, the officers attached to the 3rd respondent commenced investigation into the imports of the petitioner entity on the allegation of mis-classification and mis-declaration. Pursuant to such investigation, the 4th respondent on the authorization of the 3rd respondent conducted search of the godown premises of the petitioner entity on 07.05.2013 and sealed the said premises along with stocked goods viz., Multi Media Speakers for Computers already cleared from customs, after drawing representative samples of three models at the premises. They drew a mahazar of even date and affixed customs seal on the godown on the reasonable belief that the stocked goods have been mis-classified. Further certain import documents, viz. Bills of entry, invoice, packing list, purchase order pertaining to the past imports were also seized under the said mahazar. This apart a Restraint Order dated 07.05.2013 was also served by the 4th respondent on the petitioner under Section 110 of the Customs Act, 1962, restraining the petitioner from removing or otherwise dealing with the said goods without the permission of the respondent; (e) Since the goods pertaining to the live bill of entry No.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tom duty, CVD calculations for all the models. Further, the petitioner also sought to know the CIF value model wise, so also the RSP value adopted for arriving at the aforesaid calculation. But despite receipt of the same, the respondents have not furnished any justification for imposition of the conditions / demand. 5. The impugned communication dated 26.08.2013 has been challenged on the following grounds: 1.that it is arbitrary, illegal and unconstitutional; 2.that the respondents have no authority under law to restrain or detain any goods, which have been subject matter of assessment and clearance at the hands of the proper officer of customs; 3.that the very same goods have been cleared by Mumbai Customs Commissionerate, Nhava Sheva @ USD 14.00 per piece, which is the price and classification at which the present imported goods have been assessed and cleared by the respondents and the same value has been uniformly adopted by other customs commissionerates; 4.that there is no substantial basis for detaining the live consignment covered under Bill of Entry No.2045972 dated 06.05.2013 so as restraining the petitioner entity from any manner dealing with the goods already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1944 and Central Excise Notification No.49/2008-NT dated 24.12.2008 as amended. Under the provisions of the Legal Metrology Act, 2009 (1 of 2010) and the Legal Metrology (Packaged Commodities) Rules, 2011, the importers are required to declare on the package the retail sale price of the goods, to which the provisions of sub-section (2) of Section 4A of the Central Excise Act, 1944 are applicable. Here, Retail Sale Price is defined as the maximum price at which the excisable goods in packaged form may be sold to the ultimate consumer and includes all taxes, local or otherwise, freight, transport charges, commission payable to dealers and all charges towards advertisement, delivery, packing, forwarding and the like and the price is the sold consideration for such sale. The petitioner declared RSP ranging from Rs.450/- to Rs.1500/- for various models of multifunctional systems. However, the market enquiries reveal that the actual sale prices are 2.5 times or more on the declared RSPs. 6b. It is further stated in the counter that the Commissioner of Customs, vide powers conferred under Section 110A of the Customs Act, 1962, has allowed provisional release of the seized offending good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portant for valuation of imported goods since Rule 12 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 provides that the transaction value can be rejected on the ground of the non-declaration of parameters such as brand, grade specifications etc. Vide Custom House's Public Notice No.68/2006 dated 26.05.2006, Trade has been directed to ensure that the details for every item in a Bill of Entry are precise, complete and unambiguous and warned that any misdeclaration in the Bill of Entry will be viewed seriously and Importer/CHA will be penalised according to law. Having aware of all the legal provisions, the petitioner has resorted to suppression of facts by misdeclaration and misclassification and having succeeded in concealing these features during past clearance and caught in the act now, as an after thought, the petitioner is trying to justify its actions, stating that the said features have been added to the systems as a marketing strategy only to attract public to buy the product. 6e. An additional counter affidavit has also been filed by the third respondent, wherein it has been stated that on examination of the models imported by the petitioner, pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 110 A of the Act, which inter-alia provides that any goods seized under Section 110 of the Act may be provisionally released pending adjudication. However, the petitioner company has received a communicated dated 26.08.2013 from the 3rd respondent granting provisional release of the consignment, subject to the following conditions: 1cute suitable Bond of Rs.55 Lakhs for the value of the goods 2.Cash deposit of Rs.12 lakhs towards duty 3.Submission of Bank Guarantee of Rs.6 lakhs towards Adjudication levies. Aggrieved by such onerous conditions, the petitioner sent a reply dated 27.08.2013 to the 3rd respondent seeking to provide necessary information, such as assessable value, custom duty, CVD calculations for all the modes, CIF value (model wise) as also the RSP value adopted for arriving at the aforesaid calculation. Despite receipt of the same, the respondents have not furnished any justification for imposition of the conditions, which resulted in filing of the present writ petition before this Court. 9. It is the case of the respondents that the goods in question were imported by the petitioner by declaring low values for the audio systems by taking due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." ii) Similarly, the Hon'ble Division Bench of this Court in the case of the Commissioner of Customs (Airport), Anna International Terminal, Chennai Airport, Chennai and others vs. T.Elavarasan in W.A.No.582 of 2011 decided on 01.04.2011, while modifying the order of the learned single Judge, directed the respondent therein to deposit 50% duty of the value of the goods instead of depositing entire customs duty and the redemption fine, and on such deposit being made, the goods shall be released forthwith in favour of the respondent therein. The same view has also been absorbed in the following recent judgements of this Court: a) M/s.Sri Abhisek India, Rep. by its Proprietor Ram Dev Purva vs. The Commissioner of Customs, Customs House, New Harbour Estate, Tuticorin and others in W.P.(MD) No.1511 of 2012 decided on 22.02.2013; b) M/S.Veetrag Enterprises vs. The Commissioner of Customs in W.P.No.3135 of 2013 decided on 19th March, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r provisional release of goods, documents and things seized pending adjudication. Any goods, documents or things seized under Section 110 of the Act, may, pending the order of the adjudicating officer, be released to the owner on taking a bond from him in the proper form with such security and conditions as the Commissioner of Customs may require. 15. The only reason for non-release of the goods is that the petitioners have misclassified and mis-declared the goods in question. The respondents, on investigation, found that the differential duty has to be paid even for the provisional release of the goods. The investigation has to be completed and thereafter, adjudication has to be done for assessment of the value. 16. In the light of the above stated legal position and as the goods in question are not prohibitory items under the provisions of the Act and having regard to the foregoing reasons and discussions and considering the facts and circumstances of the case, provisional release of the goods in question is ordered, subject to the following conditions:- (i) The petitioners shall deposit with the customs authorities the duty payable on the value declared by them. (ii) The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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