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TMI Blog2017 (12) TMI 628X X X X Extracts X X X X X X X X Extracts X X X X ..... nitiated against the petitioner, in respect of those consignments, which were already cleared. Petition disposed off. - Writ Petition No. 30841 of 2017 W.M.P. Nos. 33756 to 33758 of 2017 - - - Dated:- 28-11-2017 - T. S. Sivagnanam, J. For the Petitioner : Mr.S. Krishnanadh For the Respondents : Mr. S. R. Sundar ORDER Heard Mr. S. Krishnanadh, the learned counsel appearing for the petitioner and Mr. S. R. Sundar, the learned Senior Standing Counsel for the Revenue, accepting notice on behalf of the respondents. With the consent on either side, this Writ Petition is taken up for disposal. 2. The petitioner has filed this Writ Petition, challenging the order/communication passed by the second respondent, dated 06.10.2017, in exercise of his powers under Section 110 (A) of the Customs Act, 1962 (hereinafter, referred to as 'the Act'), permitting provisional release of the goods, covered under Bill of Entry No.2078826, dated 13.06.2017. 3. The petitioner had imported certain goods from China. The consignment was said to contain LED rope lights, light panels, etc., The consignment was detained on a reasonable suspicion that, there has been mis-decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old the live consignment, and seek to recover duty liability in respect of the past imports, for which, no proceedings have been initiated by the Department so far. Therefore, it is submitted that, the conditions imposed by the respondent/Department are unsustainable, onerous, illegal, and, in violations of principles of natural justice. 6. The learned Senior Standing Counsel for the respondent/Customs Department resisted the prayer sought for by the petitioner, and while seeking to sustain the impugned order, placed reliance on the decision of the High Court of Delhi, in the case of i) Mala Petrochemicals Polymers Vs. A.D. G. Directorate of Revenue Intelligence, [(2017) 353 E.L.T. 446 (Delhi) and submitted that the decision in the case of Navshakti Industries Pvt. Ltd., Vs. Commissioner of Customs [(2011) 267 E.L.T. 483 (Delhi) (referred to by the High Court of Delhi, in Mala Petrochemicals Polymers) will not apply to misdeclared goods, which attract confiscation under Section 111 (m) of the Act, where, the circumstances so warrants penalty provisions, contained in Sections 112, 114 A and 114 AA of the Act. 7. Further, by placing reliance on the decision of the Hon'b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he quantum of bank guarantee levied to cover the adjudication levies, in respect of live consignment, the petitioner has stated that, the adjudication is yet to commence and in respect of duty liability for two earlier imports, no proceedings have been initiated till date. 11. A some what an identical case was considered by the Hon'ble Division Bench of Bombay High Court, in the case of Biharilal Singhal Vs. Union of India [(2010) 253 E.L.T. 358 (Bombay)]. While issuing similar order of provisional release, the petitioner therein, by impugned communication, dated 29.09.2009, was called upon to submit a bank guarantee equivalent to the two Bills of Entry, along with past 28 Bills of Entry finally assessed even in the year 2009. While testing the correctness of the said communication, the Hon'ble Division Bench came down heavily on the Revenue and deprecated their action, in seeking to recover the dues in respect of the past imports, where, the duties were finally assessed. At this juncture, it would be worthwhile to refer to the finding rendered by the Hon'ble Division Bench in the said case, which reads as follows:- 16. We were also taken to the various provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintained. 13. The case on hand is no better a case, than, what was considered by the Hon'ble Division Bench of Bombay High Court, in the aforementioned decision. With regard to the scope of judicial review against the orders of provisional release under Section 110 A of the Customs Act, useful reference may be made to the Division Bench decision of the High Court of Delhi, in Mala Petrochemicals Polymers Vs. A.D.G. Directorate of Revenue Intelligence, [(2017) 353 E.L.T. 446 (Delhi). It was held that the scope of judicial review of such orders is to examine, if the discretion has been rightly exercised; that it is not based on irrelevant materials and is far and reasonable in the circumstances. It was pointed out that failure to draw a distinction between seizure of imported goods for undervaluation and seizure of imported goods upon misdisclaration and treat all types of wrongful imports on an equal footing might result in miscarriage of justice. 14. In the case on hand, as far as the adjudication levies in respect of live consignment are concerned, it is yet to be quantified. Though the Board's Circular provides for such adjudication levies, there can be no questi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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