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TMI Blog2014 (5) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... to 2011 and paid duty as assessed by the Assessing Officer. On 3-2-2011, officers of the Directorate of Revenue Intelligence (DRI) searched the premises of the petitioner and found imported fabrics lying in its godowns at Ludhiana and Delhi. The DRI sealed the said godowns. Under the threat of arrest, the petitioner deposited a sum of Rs. 2 crores with the respondents. The petitioner requested for provisional release of the goods. The respondent besides seizing the goods lying in the godown, seized goods lying in two containers at ICD, Ballabhgarh vide Panchnama dated 15-3-2011 and 21-3-2011. According to the petitioner, the goods lying in godowns were sealed on 3-2-2011. Period of six months of seizure was going to expire on 2-8-2011 but no notice of confiscation was served upon the petitioner. On 29-7-2011, the Commissioner of Customs-respondent No. 3 passed an order whereby period of seizure in terms of proviso to Section 110(2) of the Customs Act, 1962 (in short, "the Act") was extended for six months. Aggrieved thereby, the petitioner filed CWP No. 4327 of 2011 before the Hon'ble Delhi High Court. Vide order dated 14-11-2011, the writ petition was disposed of with a direction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance to which an order under Section 110A of the Act was passed. Once that was so, in view of judgment of the Bombay High Court in Writ Petition No. 316 of 2008, Jayant Hansraj Singh v. Union of India and Others, decided on 29-2-2008 [2008 (229) E.L.T. 339 (Bom.)], the petitioner was not entitled for release of goods under Sections 110(2) and 124 of the Act. The only recourse available to the petitioner was either to comply with the order of provisional release and in case, the petitioner was unable to abide by the terms of the provisional release then in view of the judgment of the Bombay High Court in Jayant Hansraj Singh's case (supra), the prayer for return of goods unconditionally could not be made. It was also urged that the goods had been seized in respect of the petitioner and also at the godown premises of M/s. Ishita Exports which is a sole proprietorship concern whereas the petitioner is M/s. Akansha Syntex Pvt. Limited and, therefore, goods belonging to M/s. Ishita Exports could not be released. 6. Adverting to the submission for return of Rs. 2 crores, it was urged by the Counsel for the respondents with reference to the averments made in the short affidavit of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en a notice in writing informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty; (b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation or imposition of penalty mentioned therein; and (c) is given a reasonable opportunity of being heard in the matter : Provided that the notice referred to in clause (a) and the representation referred to in clause (b) may, at the request of the person concerned be oral." 10. The object of enacting Section 110(2) of the Act is that the officer of the Customs department may not deprive the right to property for indefinite period to the person from whose possession the goods are seized under sub-section (1) thereof. Sub-section (2) strikes a balance between the Revenue's power of seizure and an individual's right to get the seized goods released by prescribing a limitation period of six months from the date of seizure if no show cause notice within that period has been issued under Section 124(a) for confiscation of the goods. Proviso to Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased to the owner on taking a bond from him in the proper form with such scrutiny and conditions as the adjudicating authority may require." It operates wherever the assessee whose goods are seized, is desirous of its provisional release, who may apply to the authority concerned for provisional release. 12. It would be apt to examine the case before the Bombay High Court in Jayant Hansraj Singh's case (supra) on which heavy reliance has been placed by learned counsel for the Revenue. In the said case, the seizure memo was issued on 30th March, 2007 formally seizing the goods already placed under detention on 27th February, 2007. Provisional release of these goods was sought by the petitioner on 29th May, 2007, which was offered to be allowed by the Revenue on payment of duty of Rs. 15 lakhs and bank guarantee for Rs. 35 lakhs. Thereafter, petitioner had addressed another letter dated 1st October, 2007 requesting for release of the goods as period of six months had elapsed since detention of the goods and no show cause notice was issued. 13. The question that arose for consideration before the Bombay High Court in that case was if an importer applies for release of seiz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se shall not take away the right of the assessee under Section 110(2) read with Section 124 of the Act. However, where no action is initiated by way of issuance of show cause notice under Section 124(a) of the Act within six months or extended period stipulated under Section 110(2) of the Act, the person from whose possession the goods were seized becomes entitled to their return. The remedy of provisional release is independent of remedy of claiming unconditional release in the absence of issuance of any valid show cause notice during the period of limitation or extended limitation prescribed under Section 110(2) of the Act. With due respect, we are unable to subscribe to the interpretation to the contrary placed by the Bombay High Court in Jayant Hansraj Singh's case (supra). The said interpretation is not borne out from the plain reading of the aforesaid provisions. 15. The learned counsel for the petitioner had not pressed for release of Rs. 2 crores as noticed hereinbefore, therefore, while partially accepting the prayer of the petitioner for release of the goods belonging to the petitioner unconditionally as Rs. 2 crores are already lying with the respondents, it is dir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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