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TMI Blog2016 (6) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... For the Appellants : Mr. Velayutham Pichaiya, Mr. T. Chandrasekaran For the Respondent : Mr.V.T.Gopalan, Senior Counsel, for M/s.M.C.Gan Law Firm ORDER ( Order of the Court was made by S. Manikumar, J. ) W.A.No.954 of 2014 is filed by the Additional Director General and Senior Intelligence Officer, Directorate General of Revenue Intelligence, Chennai, against the order made in M.P.No.3 of 2014 in W.P.No.5663 of 2014, dated 04.07.2014. 2. W.A.No.1056 of 2014 is filed by the Joint Additional Commissioner of Customs (Airport), Chennai, against the order made in M.P.No.3 of 2014 in W.P.No.5663 of 2014, dated 04.07.2014. 3. Order challenged in both the appeal is an interim direction, directing the appellants to provisionally release 15.160 Kgs., of Gold Bars to the respondent, seized vide Mahazar, dated 14.10.2013, drawn by the officials of the appellant, from the respondent, Mr.Abhishek Mundhra, at Kamaraj Domestic Terminal, Meenambakkam, Chennai, in terms of Section 110-A of the Customs Act, 1962, pending disposal of W.A.No.5663 of 2014. 4. Material on record discloses that earlier, while admitting W.P.No.5663 of 2014, this Court, by order, dated 25.02.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r contra, before the Writ Court, the appellants have contended that the goods in question have been purported to be smuggled goods from Bangladesh and therefore, if the gold articles are ordered to be released, the respondent may conveniently erase the foreign markings embedded in those gold articles and in which event, the department would not in a position to effectively conclude the adjudication proceedings. It is also their contention that in connection with the adjudication proceedings, a show cause notice has been issued to the respondent, which is subject matter of challenge in another writ petition. Therefore, the appellants have contended that in the event of goods being released to the custody of the respondent, it would be prejudicial to the interests of the Department. 8. Having regard to the above rival submissions and by observing that whether the seized gold is a smuggled goods or not, as contended by the appellants, it can be gone into only during the adjudication proceedings, wherein, the respondent should be in a position to produce documentary evidence and inasmuch as adjudication proceedings have already been commenced, by issuing a show cause notice, subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same in domestic sector to avoid the checks by Customs in domestic airports, with an intention to completely evade Customs, the Writ Court ought not to have provisionally released the seized gold, which is against the principles laid down by the Hon'ble Supreme Court in Sheikh Mohd Omer v. Collector of Customs, Calcutta reported in 1983 (13) ELT 1439. 12. Added further, learned counsel appearing for the appellants submitted that in this Court is not inclined to set aside the order impugned, considering the fact that the seized gold is liable for confiscation, in the event of the adjudication proceedings going against the respondent, stringent conditions be imposed, to safeguard the interests of the revenue. 13. Per contra, Mr.V.T.Gopalan, learned Senior Counsel appearing for the respondent submitted that gold is not a prohibited good. He further submitted that the respondent is a reputed dealer in the business of buying and selling Gold and Silver Bullion Bars. He also submitted that the amount of gold carried is entered in the books of accounts of the dealer. 14. Inviting the attention of this Court that already sufficient safeguards are provided in the interim order, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the respondent and one Mr.Gautom Chakraborty and others. However, they disputed the same, as obtained under coercion. 18. Material on record discloses that a show cause notice has been issued on 13.04.2014, under Section 124 of the Customs Act, 1962, proposing to confiscate the seized 15.16 Kgs., of gold bars of foreign origin, valued at ₹ 4,53,89,040/-, under Sections 111(d) and 111(I) of the Customs Act, 1962 and imposition of penalty, on the respondent and others. Though the respondent seemed to have produced an authorisation letter, dated 13.10.2013, to carry gold from Kolkatta to Chennai, it is the contention of the department that the said authorisation letter is a fabricated document to bring smuggled gold bars to Chennai. 19. Though it is the contention of the appellants that the subject gold, weighing 15.16 Kgs., is smuggled and liable for confiscation, the respondent has denied the same. Conditions imposed in M.P.No.3 of 2014 in W.P.No.5663 of 2014, dated 04.07.2014, inter alia, are to the effect that the respondent should pay 100% duty to the value of the goods, as may be assessed by the officials of the respondents; he shall execute a personal bond co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are unloaded from a conveyance in contravention of the provisions of section 32, other than goods inadvertently unloaded but included in the record kept under sub-section (2) of section 45; (h) any dutiable or prohibited goods unloaded or attempted to be unloaded in contravention of the provisions of section 33 or section 34; (i) any dutiable or prohibited goods found concealed in any manner in any package either before or after the unloading thereof; (j) any dutiable or prohibited goods removed or attempted to be removed from a customs area or a warehouse without the permission of the proper officer or contrary to the terms of such permission; (k) any dutiable or prohibited goods imported by land in respect of which the order permitting clearance of the goods required to be produced under section 109 is not produced or which do not correspond in any material particular with the specification contained therein; (l) any dutiable or prohibited goods which are not included or are in excess of those included in the entry made under this Act, or in the case of baggage in the declaration made under section 77; (m) any goods which do not correspond in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onditions, within a period stated supra, subject gold can be released. 25. In the result, the Writ Appeals are disposed of. No costs. Consequently, connected Miscellaneous Petitions are also closed. 26. After the passing of the order, Mr.N.Murali Kumaran, learned counsel appearing for the respondent submitted that instead of offering immovable property security, the respondent would offer bank guarantee for the entire value of 15.16 Kgs., seized gold bars of foreign origin, valued at ₹ 4,53,89,040/-. He further submitted that apart from this condition, the other conditions, already ordered, would be complied with. However, he seeks one week's time for compliance of the conditions, including offering bank guarantee. 27. Both Mr.Velayutham Pichaiya and Mr.T.Chandrasekaran, learned counsel appearing for the respective appellants have no objection for the modification sought for, by the respondent. Submissions of the learned counsel appearing for the parties is placed on record. 28. Thus, by consent of both parties, Clauses (i) to (iii) of Paragraph 19 of this judgment, is modified as hereunder: i) The respondent is directed to offer Bank Guarantee to 100% va ..... X X X X Extracts X X X X X X X X Extracts X X X X
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