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TMI Blog2016 (6) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... would be applicable. Although the petitioners have raised a substantial question of law regarding applicability of section 4(2) of the Code, which has prima facie merits. However, since the petitioners have shown their willingness to adopt the route of settlement and to discharge their duty liability even before issuance of notice under Section 28, we deem it appropriate to dispose of the petition at this stage - Goods allowed to be released with direction. - CWP No. 12517 of 2016 - - - Dated:- 21-6-2016 - MR. M.JEYAPAUL AND MR. HARINDER SINGH SIDHU, JJ. For The Petitioner : Mr. Sujay Kantawala, Advocate with Mr.Pankaj Bali, Advocate For The Respondent : Mr. V.K. Kaushal, Advocate, Mr. Kamal Sehgal, Advocate M.JEYAPAUL, J. 1. Reply was filed. 2. Heard the submissions made by learned counsel appearing for the writ petitioners and the learned counsel appearing for the respondents. 3. The first grievance raised in the petition revolves around interpretation of Section 4(2) of the Code. It is contention of the petitioners that the Respondents are not following the procedure prescribed under Section 154, 157, 167, 172 and 177 of the Code, despite absence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of, it was held that under Section 125 of the Customs Act, unless the importation or exportation of goods is expressly prohibited , the Adjudication Authority is obliged to offer to the owner of the goods an option to pay fine in lieu of confiscation. The Tribunal referred to Asian Food Industries, 2006 (204) ELT 8 (SC), wherein the Hon'ble Apex Court inter alia observed that the meaning of word prohibited will have to be construed in regard to the text and context in which it is used and the words prohibition, restriction and regulation are meant to be applied differently. The Tribunal also observed that in the context of Section 111(d) or 113(d), in several precedents, the definition of 'prohibited goods' as contained in Section 2(33) of the Customs Act, 1962 has been applied liberally, including in Om Parkash Bhatia vs Union of India, 2003 (155) E.L.T. 423 (S.C.) and Sheikh Mohd. Omer v. Collector, 1983 (13) E.L.T. 1439 (S.C.) . However, the issue, whether in the context of Section 125, the definition of 'prohibited goods' under Section 2(33) is applicable or not, was neither raised nor determined in these precedents. The Tribunal also relied upon s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , so as to give a meaningful application to both words 'may' and 'shall' used in the said Section, the definition of 'prohibited goods' is inapplicable by application of settled principles of statutory interpretation. The Tribunal was therefore correct in observing that under Section 125 of the Customs Act, unless the importation or exportation of goods is expressly prohibited the Adjudication Authority would be obliged to offer to the Owner the goods an option to pay fine in lieu of confiscation. 6. In the instant case the Cigarettes and restricted R-22 Gas were admittedly imported by concealment. None of the two goods are expressly prohibited for importation. Therefore, ultimately the petitioner company who is owner as well as importer would be entitled for an option to redeem the goods even upon adjudication. In such case, Section 110A concerning provisional release would be applicable. 7. In the instant case, the stand taken on behalf of DRI was that the goods which according to their own estimate have local market value of ₹ 10 Crores would be absolutely confiscated and would have to be burnt or destroyed, and that such cases of fraud ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llments for seeking provisional release of seized Cigarettes imported under each of the three consignments. 11. Whereas the local market value of the seized Cigarettes is ascertained by the DRI as evident from the Panchnama, but no assessable value for the purpose of arriving at duty liability is proposed either in the remand application or before this Court. The Local market value would be inclusive of duties and taxes etc. The Invoices submitted before the Court under Affidavit cannot be brushed aside. 12. We therefore find it reasonable to permit provisional release of the seized Cigarettes on submission of a bond for total ₹ 6,21,14,598/- indemnifying Respondent Commissioner at Ludhiana for making good all the liabilities that may arise under the Act in respect of the goods imported under the three Bills of Entry, with the following further conditions- (a) The petitioner company is permitted to pay within one week from the date of this Order, the differential duty in respect of 300 cartons of cigarettes admittedly imported by concealment vide Bill of Entry no. 4785466 dated 4.4.2016. Upon making such payment the said seized 300 cartons of cigarettes shall be rele ..... X X X X Extracts X X X X X X X X Extracts X X X X
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