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TMI Blog2015 (10) TMI 831X X X X Extracts X X X X X X X X Extracts X X X X ..... d the case of Mohammed Fariz and Co. v. Commissioner of Customs [2011 (3) TMI 1338 - KERALA HIGH COURT] in support. Held That:- Direction to call upon the petitioners to furnish Bank Guarantee/Cash deposit to the extent of 35% or 20% of the differential duty will be too harsh - Petitioners shall be permitted to release the goods covered on condition of their executing Indemnity Bond agreeing and undertaking to pay the amount of differential duty imposed by the Customs authorities while making the final assessment, instead of Bank Guarantee – Order modified in favour of the Petitioner. - WA. No. 606 of 2015 In WP(C).6722/2015 - - - Dated:- 13-3-2015 - Ashok Bhushan, Ag. C.J. A.M. Shaffique, J. For the Petitioner : Advs. Sri. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quiry is required regarding the origin of goods. Hence, in terms of Section 18(1)(c) of the Customs Act, 1962, provisional assessment has been made till the completion of required verification and enquiry. On that basis, provisional assessment has been made and the petitioners were called upon to release the goods on paying or giving guarantee for 35% of the differential duty. The learned Single Judge, by the judgment impugned, after taking into consideration the scope and effect of section 18 (1)(c) of the Customs Act, confirmed the order passed by the Commissioner of Customs with reference to ordering provisional assessment, but modified the condition by reducing the duty to be given as Bank Guarantee/Cash deposit by 20% instead of 35%. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge is covered by the judgment of this Court in Mohammed Fariz and Co. v. Commissioner of Customs - 2012 (275) E.L.T. 303 (Kerala). That was a case in which the dispute was regarding valuation of Betel nuts imported by the importer, on the basis of which provisional assessment was made under section 18(1)(c) of the Customs Act, wherein this Court held at paragraph 13 as under: 13. What is clear from Section 18(1) read with the above Regulations is that the Officer could make provisional assessment and release goods under Section 18 of the Act pending final adjudication only after ensuring that the actual duty that could be levied later will be recoverable from the party. For this purpose, the provisions of the Act and the Regulations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) which requires surety or security in support of the bond executed which is noting but an undertaking to pay duty on demand. However, a surety bond should be valid only when it is supported by proper security, which may be by way of mortgage of immovable property or bank guarantee in favour of the Department or otherwise, and bond executed without proper security would serve only as a document to claim the amount. The Officer should realise that the best and safest course open to the Department is to demand bank guarantee from the local branch of a Nationalised Bank for balance provisional duty determined, so that recovery is ensured without any necessity for the Department to chase the parties and looking for their assets. In fact, creden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enquiry in respect of another consignment which is pending consideration by the DRI. Whether they have any doubt regarding the consignment imported by the petitioner is not borne out by records. Under such circumstances, the direction to call upon the petitioners to furnish Bank Guarantee/Cash deposit to the extent of 35% or 20% of the differential duty as the case may be, will be too harsh. If at all any liability could be fastened on the petitioners while making the final assessment, it would suffice that the petitioners submit appropriate undertaking in writing in the form of an Indemnity Bond agreeing and undertaking to pay the differential duty, if any, imposed at the time of final assessment. Under such circumstances, we are of the v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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