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TMI Blog2013 (9) TMI 1000X X X X Extracts X X X X X X X X Extracts X X X X ..... mps, etc. According to the DRI officials, investigations have revealed that ORKIA and HOYA brands are sold at much higher prices than the declared value/MRP. It was also revealed that the goods are being supplied by K.S. Group (H.K) Ltd., Hong Kong, a company controlled by Shri Manoj Meghraj Jain and Shri Mitesh Meghraj Jain who are the brothers of the proprietor of the first applicant firm indicating that the supplier and the importer are related. The DRI officials ascertained the MRP from the internet site of www.ebay.in and www.tradus.com in respect of seven items and found that the MRP indicated on these sites are much higher than that declared by the importers. Based upon this information, the officials seized/detained various consignm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for 100% of the Re-determined Assessable value (i.e. 40% of the MRP of the items, MRP ascertained by DRI). (ii) On submission of Bank Guarantee equal to 100% differential duty as per Re-determined value as above (duty to be paid on the basis of re-determined value as above less duty paid at the time of clearance). (iii) On execution of the Bank Guarantee (with self renewal clause) for 10% of the Re-determined value as above (for RF and Penalty purpose)." The applicants have filed two appeals against the said orders as they consider the conditions to be very very harsh amounting to negating the release under Section 110A. 2. It is seen that the said order of the Commissioner of Customs has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 ('the Act' for short). 4. A perusal of Section 129A(1)(a) of the Act will show that the order impugned herein is appealable. As the petitioner has a statutory remedy of appeal as against the order impugned herein and in view of the observations made by the Hon'ble Supreme Court in United Bank of India v. Satyawati Tondon [AIR 2010 SC 3413] vide para 17 thereof, I decline to entertain this writ petition with liberty to the petitioner to avail of the statutory remedy of appeal under Section 129A(1)(a) of the Act in accordance with law. 5. Having regard to the facts of the case and the urgency pleaded by the learned Senior Counsel for the petitioner, I direct the Appellate Tribunal to dispose of the appeal within three weeks from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in 2011 (269) E.L.T. A146 (S.C.). The learned counsel further submitted that the said decision of the Hon'ble Delhi High Court has further been followed in the case of Zest Aviation Pvt. Ltd. v. UOI reported in 2013-TIOL-132-HC-DEL-CUS = 2013 (289) E.L.T. 243 (Del.). The learned counsel submitted that in view of the said decisions of the Hon'ble High Courts and the Hon'ble Supreme Court, it was incumbent on the part of the Commissioner to permit provisional clearance asking for 20% of the provisional duty. 4. The learned Advocate also submitted that alternatively the department can keep 10% of the goods as security and release the 90% of the goods. He further argued that the MRP of the 10% of the goods as calculated by the departme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for the appellants also stated that the prices given in www.ebay.in and www.tradus.com can, by no stretch of imagination, be taken as the correct value. The values given there are for a single piece while his clients imported a very huge quantity running into tens of containers and the prices cannot be loaded on such an evidence. Ld. Counsel also argued that in case of imported goods MRP/RSP are not decided by the manufacturers but importers. Thus MRP/RSP can be very different. Moreover, sites like ebay, at times give discount up to 50% even on purchase of single piece. He further stated that while passing the decision in the case of Apollo Cranes Pvt. Ltd., the Hon'ble Bombay High Court was not made aware of the decision of the Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be the same, goods being same/similar. Further, we are of the view that the goods where the MRPs are available (though disputed by the applicants) are on different footing than the goods where MRPs are not available and the department is only making an estimate. Further, asking bank guarantee for RF/penalty in the facts and circumstances of the case is harsh. In view of this, we modify the impugned order as under :- (i) On execution of bond for 100% of the re-determined assessable value (i.e. 40% of the MRP of the items, MRP ascertained by the DRI). (ii) On payment of 50% differential duty applicable to be paid in cash in respect of seven items (OK-5541, OK-5552, OK-119CC, OK-64CC, OK-640 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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